Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03. (b) Subject to Sections 8.02(c) and 8.03, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates. (c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 2 contracts
Samples: Indenture (Physicians Management, LLC), Indenture (Physicians Management, LLC)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution the resolution of the its Board of Directors of the CompanyDirectors, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) below or (c) of this Section 8.1 be applied to all outstanding Outstanding Notes upon compliance with the conditions set forth in Section 8.038.2.
(b) Subject Upon the Company’s exercise under paragraph (a) of this Section 8.1 of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.2, be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in Section 8.2 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of Section 8.3 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in clause (i) or (ii) of this paragraph (b), and to have satisfied all their its other obligations under the such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and as more fully set forth in Section 8.3, payments in respect of the principal of and interest on such Notes when such payments are due;
(ii) the Company’s obligations with respect to such Notes under Article II and Section 3.2;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith; and
(iv) this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) of this Section 8.1.
(c) Upon the Company’s exercise under paragraph (a) of this Section 8.1 of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the applicable conditions set forth in Section 8.2, be released from its obligations under the covenants contained in Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8, Section 3.9, Section 3.10, Section 3.11, Section 3.12, Section 3.13, Section 3.14, Section 3.15, Section 3.16, Section 3.17, Section 3.18, Section 3.19, Section 3.20, Section 3.21, Section 3.22, Section 4.1(a)(i), Section 4.1(a)(iii), Section 4.1(a)(iv), Section 5.9, and Article XI with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Legal Covenant Defeasance”), and after giving effect to such Legal Defeasancethe Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any omission to comply thereof) in connection with such obligations covenants, but shall no longer constitute a Default or Event of Default or continue to be Outstanding for all other purposes hereunder (ii) their obligations under Section 4.03 (other than it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the existence of the Company)Outstanding Notes, Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4or in respect of Section 6.1(a)(iii), (5a)(iv) (except with respect to Section 4.1(a)(ii), (6a)(v) and (a)(vi)), (7) (with respect only to Significant Subsidiariesa)(v), (8) and a)(vi), (9a)(vii), (a)(viii), (a)(ix) and the limitations contained in clause or (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Defaulta)(x), but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesthereby.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 2 contracts
Samples: Indenture (Iusacell S a De C V), Indenture (Mexican Cellular Investments Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution the resolution of the its Board of Directors of the CompanyDirectors, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) below or (c) of this Section 8.1 be applied to all outstanding Outstanding Notes upon compliance with the conditions set forth in Section 8.038.2.
(b) Subject Upon the Company's exercise under paragraph (a) of this Section 8.1 of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.2, be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in Section 8.2 are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of Section 8.3 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in clause (i) or (ii) of this paragraph (b), and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and after giving effect to as more fully set forth in Section 8.3, payments in respect of the principal of and interest on such Legal Defeasance, any omission to comply with Notes when such obligations shall no longer constitute a Default or Event of Default or payments are due;
(ii) their the Company's obligations with respect to such Notes under Article II and Section 3.2;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith; and
(iv) this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) of this Section 8.1.
(c) Upon the Company's exercise under paragraph (a) of this Section 8.1 of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the applicable conditions set forth in Section 8.2, be released from its obligations under the covenants contained in Section 4.03 (other than 3.3(a), Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8, Section 3.9, Section 3.10, Section 3.11, Section 3.12, Section 3.14, Section 3.15, Section 3.16, Section 4.1(a)(ii), Section 4.1(a)(iv) and Section 4.1(a)(v) with respect to the existence of Outstanding Notes on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 the Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and clause the consequences of any thereof) in connection with such covenants, but shall continue to be Outstanding for all other purposes hereunder (3) of it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01Outstanding Notes, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Triggering Event, a Default or an Event of or Default under Sections 6.01(4or in respect of Section 6.1(a)(iii) (except as it applies to the provisions of Article IV that are not released pursuant to this Section 8.1(c), (5Section 4.1(a)(i), (6Section 4.1(a)(iii), (7Section 4.1(b) (with respect only to Significant Subsidiariesand Section 4.1(c)), (8) and (9Section 6.1(a)(iv), Section 6.1(a)(v) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default6.1(a)(vi), but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesthereby.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 2 contracts
Samples: Indenture (Grupo Iusacell Sa De Cv), Indenture (Grupo Iusacell Sa De Cv)
Legal Defeasance and Covenant Defeasance. (a) The Unless otherwise specified in a supplemental indenture as contemplated by Section 2.1 with respect to any series of Notes, (a) the Company may, at its option by Board Resolution of the Board of Directors of the CompanyCertified Resolution, at any time, with respect to the Notes of any series, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes of such series upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject to Sections 8.02(c) and 8.03, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Notes of such series on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes of such series, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture applicable to such Notes referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Notes and this Indenture applicable to such Notes insofar as such Notes are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), and holders of such Notes and any amounts deposited under paragraph (d) below shall cease to be subject to any obligations to, or the rights of, any holder of Senior Indebtedness or under any applicable subordination provisions of Sections 2.02 through 2.11or otherwise, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of holders of outstanding Notes have been surrendered of such series to receive solely from the Trustee for cancellation trust fund described in paragraph (d) below and as more folly set forth in such paragraph, payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are no longer outstanding pursuant to the last paragraph of Section 2.due, (ii) the
Appears in 2 contracts
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon the Company’s exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and, if it so selects each of the Subsidiary Guarantors, shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.04 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in (i1) and (2) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders to receive solely from the trust fund described in Section 8.04, and after giving effect to as more fully set forth in such Legal DefeasanceSection, any omission to comply with payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due;
(2) the Company’s obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to such Notes under Article Two and Section 4.04;
(3) the existence rights, powers, trusts, duties and immunities of the Trustee hereunder, and the Company’s and the Subsidiary Guarantor’s obligations in connection therewith; and
(4) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company’s exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company and any Subsidiary Guarantor shall, subject to the satisfaction of the conditions set forth in Section 4.04 and 8.03, be released from its obligations under the covenants contained in Section 4.02, Sections 4.09 4.07 through 4.19 Section 4.22 (inclusive) and clause (3) of Section 5.01 hereof with respect to the first paragraph of Section 5.01outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company’s exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.03, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.01(3), 6.01(4), 6.01(5), 6.01(6) and (b), the provisions 6.01(7) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 2 contracts
Samples: Indenture (Landrys Restaurants Inc), Indenture (Landrys Restaurants Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from its obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”), i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and after giving effect to as more fully set forth in such Legal Defeasance, any omission to comply with paragraph payments in respect of the principal of and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due and (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.19 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in Section 8.03, Sections 6.01(3), 6.01(4), 6.01(5) being referred and 6.01(6) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or U.S. Government Obligations or a combination thereof in such amounts and at such times as are sufficient, in the opinion of its Covenant Defeasance option. If a nationally recognized firm of independent public accountants, to pay the principal of and interest on the outstanding Notes to maturity or redemption; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company exercises its instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Defeasance option, payment Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes may not be accelerated because of an to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event such deposit or insofar as Events of Default specified under Sections 6.01(4), from bankruptcy or insolvency events are concerned at any time in the period ending on the 91st day after the date of deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the Incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such Incurrence);
(3) Such deposit will not result in a Default under this Indenture. Upon satisfaction Indenture or a breach or violation of, or constitute a default under, this Indenture or any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delay- ing or defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Notes and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the date of deposit and that no Holder of Notes is an insider of the Company, after the 91st day following the date of deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(7) The Company has delivered to the Trustee shall acknowledge in writing an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the discharge of those obligations that the Company terminates.
(c) defeasance contemplated by this Section 8.01 have been complied with. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) will become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 2 contracts
Samples: Indenture (Appliance Warehouse of America Inc), Indenture (Coinmach Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the outstanding Notes and this Indenture on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations under such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, and interest on such Notes when such payments are due, (ii) obligations listed in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.13 and 8.03, subject to compliance with this Section 4.03 8.01 and (other than iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence Notes.
(c) Upon the Company’s exercise under paragraph (a) of the option applicable to this paragraph (c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Sections 4.05 and 4.07, Sections 4.09 through 4.23 (provided that the release and discharge of the Company), ’s obligations under Section 4.04 4.23 shall in no way relieve the Company of its obligation to pay any Additional Interest when due and Sections 4.09 through 4.19 payable) and clause (32) of the first paragraph of Section 5.015.01 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(3) or (4), but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company’s exercise under paragraph (5a) hereof of the option applicable to this paragraph (c), subject to the satisfaction of the conditions set forth in paragraph (6)d) below, (7Section 6.01(3) (solely to the extent Section 6.01(3) pertains to Sections 4.05 and 4.07, Sections 4.09 through 4.23 (other than, with respect only to Significant SubsidiariesSection 4.23, the failure to pay Additional Interest when due and payable which failure shall constitute an Event of Default to the extent provided in Section 6.01(1), (8) and (9)) and the limitations contained in clause (32) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii5.01), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (56.01(5), (66.01(8), 6.01(9) and 6.01(10) shall not constitute Events of Default.
(7d) The following shall be the conditions to application of either paragraph (with respect only to Significant Subsidiaries), (8) or (9b) or because paragraph (c) above to the outstanding Notes:
(1) the Company shall have irrevocably deposited in trust with the Trustee, in trust, for the benefit of failure the Holders, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof, in such amounts and at such times as will be sufficient, in the opinion of a nationally-recognized firm of independent public accountants, to comply with clause pay the principal of, and premium, if any, and interest on the outstanding Notes on the stated date for payment therefor or on the applicable Redemption Date, as the case may be;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that:
(a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or any Subsidiary loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to comply with any of federal income tax on the foregoing Sections shall constitute a same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default under shall have occurred and be continuing on the date of such deposit pursuant to clause (1) of this Indenture. Upon satisfaction paragraph (except such Default or Event of Default resulting from the failure to comply with Section 4.11 or 4.16 as a result of the conditions set forth herein and upon request borrowing of funds required to effect such deposit or the granting of any Liens to secure such borrowing) or insofar as Defaults or Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the CompanyCompany or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and
(8) the Company shall have delivered to the Trustee an Opinion of Counsel (subject to customary qualifications and exclusions) to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended. Notwithstanding the foregoing, the Trustee shall acknowledge in writing the discharge Opinion of those obligations that the Company terminates.
(cCounsel required by Section 8.01(d)(2) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) shall become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 2 contracts
Samples: Indenture (McLeodUSA Holdings Inc), Indenture (McLeodusa Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon the Company’s exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and, if it so selects, each Subsidiary Guarantor, shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.04 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in clauses (i1), (2), (3) and (4) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders to receive solely from the trust fund described in Section 8.04, and after giving effect as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due;
(2) the Company’s obligations with respect to such Legal DefeasanceNotes under Article Two and Section 4.04;
(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and the Company’s and each Subsidiary Guarantor’s obligations in connection therewith; and
(4) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company’s exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company and any omission Subsidiary Guarantor shall, subject to comply with such obligations shall no longer constitute a Default or Event the satisfaction of Default or (ii) their the conditions set forth in Section 8.03, be released from its obligations under Section 4.03 4.02, Sections 4.07 through Section 4.22 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 inclusive) and clause (3) of Section 5.01 hereof with respect to the first paragraph of Section 5.01outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such Sections, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenantSection, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant Section or by reason of any reference in any such covenant Section to any other provision herein or in any other document and any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company’s exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.03, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.01(3), 6.01(4), 6.01(5), 6.01(6) and (b), the provisions 6.01(7) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 2 contracts
Samples: Indenture (Hhgregg, Inc.), Indenture (HHG Distributing, LLC)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the Subsidiary Guarantors at any time may terminate outstanding Notes on the date the conditions set forth below are satisfied (ihereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and to have satisfied all their its other obligations under the such Notes and this Indenture insofar as such Notes are concerned (“Legal Defeasance”and the Trustee, at the expense of the Company, shall 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 outstanding Notes to receive solely from the trust fund described in paragraph (d) below and after giving effect to as more fully set forth in such Legal Defeasanceparagraph, any omission to comply with payments in respect of the principal of, premium, if any, and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.02, 7.07, 7.08, 8.03, 8.04 and 8.05, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and (iv) this Section 4.03 8.02. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article V and in Sections 3.04, and 4.09 through 4.16 with respect to the outstanding Notes on and after the date the conditions set forth in paragraph (d) are satisfied (hereinafter, "covenant defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 document, and any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Notes:
(i) The Company may exercise its shall have irrevocably deposited in trust with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Section 8.02 applicable to it), pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or U.S. Government Obligations maturing as to principal and interest at such times, or a combination thereof, in such amounts as are sufficient, without consideration of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, reinvestment of such interest and after payment of all federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants 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 interest on the outstanding Notes may not be accelerated because on the dates on which any such payments are due and payable in accordance with the terms of an this Indenture and of the Notes;
(A) No Default or Event of Default shall have occurred or be continuing on the date of such deposit, and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7B) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under Section 6.01(f) and (g) shall occur on or before the 123rd day after the date of such deposit;
(iii) Such legal defeasance or covenant defeasance shall not result in a Default under this Indenture or a breach or violation of, or constitute a default or event of default under, any other instrument or agreement to which the Company is a party or by which it or its property is bound;
(iv) In the case of a legal defeasance under paragraph (b) above, the Company has delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the conditions set forth herein Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and upon request discharge and shall be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred; and, in the case of a covenant defeasance under paragraph (c) above, the Company shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, to the effect that holders of the CompanyNotes shall not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance and shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(v) 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 one hundred twenty-three (123) days following the deposit, the trust funds shall not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally;
(vi) The Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.02 have been complied with; provided, that no deposit under clause (i) shall be effective to terminate the obligations of the Company under the Notes or this Indenture prior to the passage of one hundred twenty three (123) days following such deposit.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) ------- above in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of Principal, and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the Principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Section 8.02 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (cd) Notwithstanding above which, in the provisions opinion of Sections 8.01(a) and (b), the provisions a nationally recognized firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof which would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 2 contracts
Samples: Indenture (Cellstar Corp), Indenture (Cellstar Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution the resolution of the its Board of Directors of the CompanyDirectors, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) below or (c) of this Section 8.1 be applied to all outstanding Outstanding Notes upon compliance with the conditions set forth in Section 8.038.2.
(b) Subject Upon the Company’s exercise under paragraph (a) of this Section 8.1 of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.2, be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in Section 8.2 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of Section 8.3 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in clause (i) or (ii) of this paragraph (b), and to have satisfied all their its other obligations under the such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and as more fully set forth in Section 8.3, payments in respect of the principal of and interest on such Notes when such payments are due;
(ii) the Company’s obligations with respect to such Notes under Article II and Section 3.2;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith; and
(iv) this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) of this Section 8.1.
(c) Upon the Company’s exercise under paragraph (a) of this Section 8.1 of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the applicable conditions set forth in Section 8.2, be released from its obligations under the covenants contained in Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8, Section 3.9, Section 3.10, Section 3.11, Section 3.12, Section 3.13, Section 3.14, Section 3.15, Section 3.16, Section 3.17, Section 3.18, Section 3.19, Section 3.20, Section 3.21, Section 3.22, Section 4.1(a)(i), Section 4.1(a)(iii), Section 4.1(a)(iv), Section 5.8, and Article XIII with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Legal Covenant Defeasance”), and after giving effect to such Legal Defeasancethe Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any omission to comply thereof) in connection with such obligations covenants, but shall no longer constitute a Default or Event of Default or continue to be Outstanding for all other purposes hereunder (ii) their obligations under Section 4.03 (other than it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the existence of the Company)Outstanding Notes, Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4or in respect of Section 6.1(a)(iii), (5a)(iv) (except with respect to Section 4.1(a)(ii), (6a)(v) and (a)(vi)), (7) (with respect only to Significant Subsidiariesa)(v), (8) and a)(vi), (9a)(vii), (a)(viii), (a)(ix) and the limitations contained in clause or (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Defaulta)(x), but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesthereby.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 2 contracts
Samples: Indenture (Iusacell S a De C V), Indenture (Inmobiliaria Montes Urales 460 S a De C V)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all outstanding the Outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “Outstanding” only for the purposes of Default or the sections and matters under the Indenture referred to in (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Notes and the Indenture insofar as such Notes are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of Outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (ii) the Company’s obligations to issue temporary Notes, register the transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain an office or agency for payments in respect of the Notes, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith and (iv) the Legal Defeasance provisions of the Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Guarantors shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 403 through 410 with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “Outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 601(3), (5), (6), nor shall any event referred to in Section 601(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this the Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the Outstanding Notes:
(1) The Company may exercise its must irrevocably deposit with the Trustee, in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If Tender or U.S. Government Obligations for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under this Indenture shall terminate. If United States of America is pledged or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the Company exercises its Covenant Defeasance option, reinvestment of such interest and principal and after payment of all federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants selected by 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 interest on all the Outstanding Notes may on the dates on which any such payments are due and payable in accordance with the terms of the Indenture and of the Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officer’s Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Section 601(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officer’s Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction the Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, beneficial owners of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee, confirming that beneficial owners of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an “investment company” under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officer’s Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of preferring the Holders of Notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(9) The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Trustee and stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 1101 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Notes or the Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 6.07 of the Base Indenture. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by paragraph (5) above need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 2 contracts
Samples: Fifth Supplemental Indenture (Graphic Packaging International, LLC), Fourth Supplemental Indenture (Graphic Packaging International, LLC)
Legal Defeasance and Covenant Defeasance. (a) The Company Issuer may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes and all obligations of the Guarantors upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Issuer’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company Issuer and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Notes outstanding Notes, the Guarantees and this Indenture the Collateral Agreements on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Guarantees), any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in clause (i) and (ii) below, and the Issuer and the Guarantors shall be deemed to have satisfied all their other obligations under such Notes and this Indenture, the Guarantees and the Collateral Agreements, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, and interest and Additional Interest, if any, on such Notes when such payments are due, (ii) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01 and (other than iii) the rights, powers, trusts, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith. The Issuer may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause Issuer’s exercise under paragraph (3a) of the first option applicable to this paragraph of (c), the Issuer and the Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Section 5.014.05, Sections 4.08 through Section 4.23 and Section 5.01(2), with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Company Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes and the Guarantees, the Issuer and the Guarantors may omit to comply with and shall have no 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 herein, in the Guarantees, the Collateral Agreements or in any other document and any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Issuer’s exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and option applicable to this paragraph (c), subject to the Note Guarantees and all obligations satisfaction of the Subsidiary Guarantors under this Indenture shall terminate. If conditions set forth in paragraph (d) below, Sections 6.01(3) through 6.01(9) (except, in the Company exercises its Covenant Defeasance option, payment case of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4Section 6.01(6) and 6.01(7), (5), (6), (7) (with respect only to Significant Subsidiaries), ) shall not constitute Events of Default.
(8) or d) The following shall be the conditions to application of either paragraph (9b) or because of failure paragraph (c) above to comply the outstanding Notes:
(1) The Issuer shall have irrevocably deposited in trust with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes Trustee, pursuant to Sections 4.09 an irrevocable trust to the Trustee, U.S. Legal Tender or 4.15 non-callable U.S. Government Obligations or a combination thereof, in such amounts and no failure by at such times as are sufficient, in the Company opinion of a nationally-recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest and Additional Interest, if any, on the outstanding Notes on the stated dates for payment or any Subsidiary redemption, as the case may be; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Issuer instructing the Trustee (or other qualifying trustee) to comply apply such U.S. Legal Tender or the proceeds of such U.S. Government Obligations to said payments with any respect to the Notes to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be continuing on the foregoing Sections shall constitute date of such deposit (other than a Default or Event of Default under this Indenture. Upon satisfaction arising from the failure to comply with Section 4.08 in connection with the substantially contemporaneous borrowing of funds to fund the conditions set forth herein and upon request deposit referenced in clause (1) above and/or the granting of any Lien securing such borrowing) or insofar as Defaults or Events of Default from bankruptcy or insolvency events are concerned, at any time in the Company, period ending on the Trustee shall acknowledge in writing 91st day after the discharge date of those obligations that the Company terminates.such deposit;
(c3) Notwithstanding Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default hereunder (other than a Default or Event of Default arising in connection with the provisions substantially contemporaneous borrowing of Sections 8.01(afunds to fund the deposit referenced in clause (1) above and (b), the provisions granting of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until any Lien securing such borrowing) or any other material agreement or instrument to which the Notes have been surrendered to Issuer or any of its Restricted Subsidiaries is a party or by which the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph Issuer or any of Section 2.its Restricted Subsidiaries is bound;
Appears in 1 contract
Samples: Indenture (Verrazano,inc.)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Notes outstanding Notes, the Guarantees and this Indenture the Collateral Agreements on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in clause (i) and (ii) below, and the Company and the Guarantors shall be deemed to have satisfied all their other obligations under such Notes and this Indenture, the Guarantees and the Collateral Agreements, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, interest and Additional Interest, if any, on, such Notes when such payments are due, (ii) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01 and (other than iii) the rights, powers, trust, duties and immunities of the Trustee and the Company’s obligations in connection therewith. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence Notes.
(c) Upon the Company’s exercise under paragraph (a) of the option applicable to this paragraph (c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Sections 4.05 and 4.08, Sections 4.10 through 4.26 (provided that the release and discharge of the Company), ’s obligations under Section 4.04 4.26 shall in no way relieve the Company of its obligation to pay any Additional Interest when due and Sections 4.09 through 4.19 payable) and clause (32) of the first paragraph of Section 5.015.01 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes and the Guarantees, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company’s exercise under paragraph (a) hereof of the option applicable to this paragraph (c), subject to the satisfaction of the conditions set forth in paragraph (5)d) below, (6), (7Section 6.01(3) (with respect only solely as such Section 6.01(3) pertains to Significant Subsidiaries)Sections 4.05 and 4.08, Sections 4.10 through 4.26 (8) provided that the release and (9discharge of the Company’s obligations under Section 4.26 shall in no way relieve the Company of its obligation to pay any Additional Interest when due and payable) and the limitations contained in clause (32) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii5.01), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (56.01(5), (66.01(8), 6.01(9) and 6.01(10) shall not constitute Events of Default.
(7d) The following shall be the conditions to application of either paragraph (with respect only to Significant Subsidiaries), (8) or (9b) or because paragraph (c) above to the outstanding Notes:
(1) the Company shall have irrevocably deposited with the Trustee, in trust, for the benefit of failure the Holders, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof, in such amounts and at such times as are sufficient, in the opinion of a nationally-recognized firm of independent public accountants, to comply with clause pay the principal of, and premium, if any, interest and Additional Interest, if any, on, the outstanding Notes on the stated dates for payment or redemption, as the case may be;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that:
(a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or any Subsidiary loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to comply with any of federal income tax on the foregoing Sections shall constitute a same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default under shall have occurred and be continuing on the date of such deposit pursuant to clause (1) of this Indenture. Upon satisfaction paragraph (except such Default or Event of Default resulting from the failure to comply with Section 4.12 or Section 4.16 as a result of the conditions set forth herein and upon request borrowing of funds required to effect such deposit) or insofar as Defaults or Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the CompanyCompany or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and
(8) The Company shall have delivered to the Trustee an Opinion of Counsel (subject to customary qualifications and exclusions) to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940. Notwithstanding the foregoing, the Trustee shall acknowledge in writing the discharge Opinion of those obligations that the Company terminates.
(cCounsel required by Section 8.01(d)(2) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) shall become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Samples: Indenture (Dune Energy Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon the Company's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.04 hereof and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), and after giving effect Holders of the Notes and any amounts deposited under Section 8.03 hereof shall cease to such Legal Defeasancebe subject to any obligations to, or the rights of, any omission holder of Senior Debt or Guarantor Senior Debt under Article Ten or Eleven, as the case may be, or otherwise, except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to comply with receive solely from the trust fund described in Section 8.04 hereof, and as more fully set forth in such obligations shall no longer constitute a Default or Event Section, payments in respect of Default or the principal of, premium, if any, and interest on such Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Article Two and Section 4.02 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.03 hereof, be released from its obligations under Section 4.03 (other than the covenants contained in Sections 4.10 through 4.20 and Article Five hereof with respect to the existence outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes) and Holders of the Company)Notes and any amounts deposited under Section 8.03 hereof shall cease to be subject to any obligations to, Section 4.04 and Sections 4.09 through 4.19 and clause (3) or the rights of, any holder of Senior Debt or Guarantor Senior Debt under Article Ten or Article Eleven or otherwise. For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Notes, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4)Section 6.01(3) hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.03 hereof, the Trustee shall acknowledge those events described in writing the discharge of Section 6.01 (except those obligations that the Company terminates.
events described in Section 6.01(1), (c) Notwithstanding the provisions of Sections 8.01(a2), (6) and (b7), the provisions ) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Samples: Indenture (Neff Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections 8.02(cand matters under this Indenture referred to in (i) and 8.03(ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of the Holders of outstanding Securities to receive payment in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company's obligations to issue temporary Securities, register the transfer or exchange of any Securities, replace mutilated, destroyed, lost or stolen Securities and maintain an office or agency for payments in respect of the Securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee, and (iv) the Legal Defeasance provisions of this Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.24 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(3), (5), (6), nor shall any event referred to in Section 6.01(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may full faith and credit of the United States of America is pledged ("U.S. Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and principal and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants 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 interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Securities;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received Officers' Certificates stating that No Default of Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the Note Guarantees and all obligations date of such deposit or, insofar as Section 6.01(5) or (6) is concerned, at any time during the Subsidiary Guarantors period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers' Certificates stating that such deposit will not result in a Default under this Indenture shall terminate. If the Company exercises its Covenant Defeasance optionor a breach or violation of, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4)or constitute a default under, (5), (6), (7) (with respect only any other material instrument or agreement to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by which the Company or any Subsidiary of its Sub- sidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to comply with any the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that Holders of the foregoing Sections Securities will not recognize income gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to Federal income taxes in the same manner and at the same times as would have been the case of such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall constitute a Default or Event deliver to the Trustee an Opinion of Default under this Indenture. Upon satisfaction Counsel, in form and substance reasonably satisfactory to the Trustee, to the effect that, Holders of the conditions set forth herein Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an "investment company" under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officers' Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) The Company shall have delivered to the Trustee shall acknowledge an Opinion of Counsel, in writing form and substance reasonably satisfactory to the discharge Trustee, to the effect that, (A) the trust funds will not be subject to the rights of those obligations that holders of Indebtedness of the Company terminates.or any Guarantor other than the Securities and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Securities is an insider of the Company, after the passage of 90 days following the deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(c9) The Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with; provided, however, that no deposit under clause (1) above shall be effective to terminate the obligations of the Company under the Securities or this Indenture prior to 90 days following any such deposit; and
(10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 7.07. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered Counsel required by paragraph (5) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Vs Holdings Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyDirectors, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.038.3.
(b) Subject Upon the Company’s exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), each of Holdings, the Company and the Subsidiary Guarantors at any time may terminate shall, subject to the satisfaction of the conditions set forth in Section 8.3, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.4 hereof and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.4 hereof, and as more fully set forth in such Section, payments in respect of the principal of and interest on such Notes when and to the extent such payments are due, (ii) the Company’s obligations with respect to such Notes under Article II and Section 4.2 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith, including Section 7.7 hereof and (iv) this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company’s exercise under paragraph (a) hereof of the option applicable to this paragraph (c), each of Holdings, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.3 hereof, be released from its obligations under the covenants contained in Sections 4.8 through 4.14 and Sections 4.16 through 4.18 and Sections 4.21 and 4.22 and Articles V and X hereof with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Legal Covenant Defeasance”), and after giving effect to such Legal Defeasancethe Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any omission to comply thereof) in connection with such obligations covenants, but shall no longer constitute a Default or Event of Default or continue to be deemed “outstanding” for all other purposes hereunder (ii) their obligations under Section 4.03 (other than it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the existence of the Company)outstanding Notes, Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company and its Subsidiaries may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4)Section 6.1(c) hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company’s exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.3 hereof, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.1(c) and (b), the provisions 6.1(e) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Samples: Indenture (Webcraft LLC)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities when such payments are due and (ii) obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Sections 4.03 through 4.20 and Article Five with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a De fault or an Event of Default under Section 6.01(3), nor shall any event referred to in Section 6.01(4), (5) or (8) thereafter constitute a Default or an Event of Default there under Sections 6.01(4)but, (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may full faith and credit of the United States of America is pledged ("U.S. Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants 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 interest on the out standing Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Securities;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an the TIA;
(3) No Default or Event of Default and (i) shall have occurred or be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), such deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the Incurrence of Indebtedness, all or a portion of which will be used to defease the Securities concurrently with such Incurrence) or (ii) shall occur on or before the 91st day after the date of such deposit;
(4) Such deposit will not result in a Default under this Indenture. Upon satisfaction Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that, in the case of clauses (i) and (ii), Holders of the conditions set forth herein Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and upon request of the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The deposit shall not result in the Company, the Trustee shall acknowledge in writing or the discharge trust becoming or being deemed to be an "investment company" under the Investment Company Act of those obligations that the Company terminates.1940;
(c7) Notwithstanding The Holders shall have a perfected security interest under applicable law in the provisions of Sections 8.01(aU.S. Legal Tender or U.S. Government Obligations deposited pursuant to Section 8.01(d)(1) and above;
(b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight 8) The Company shall survive until the Notes have been surrendered delivered to the Trustee for cancellation an Officer's Certificate, in form and are no longer outstanding pursuant substance reasonably satisfactory to the last paragraph Trustee, stating that the deposit under clause (1) was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(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, (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Securities and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Securities is an insider of the Company, after the passage of 90 days following the deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(10) The Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 28.01 have been complied with; provided, however, that no deposit -------- ------- under clause (1) above shall be effective to terminate the obligations of the Company under the Securities the Security Documents or this Indenture prior to 90 days following any such deposit. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Sheffield Steel Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities when such payments are due, (ii) the Company's obligations with respect to such Securities under Sections 2.05, 2.06, 2.07, 2.08, 4.02, 7.07 (except in respect of Liens on the Collateral), 7.08, 8.04 and 8.05, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 4.04 and Sections 4.09 through 4.19 and clause 8.02. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (3b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03, 4.07, 4.09 and 4.11 through 4.20 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal of and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge principal of, premium, if any, and interest on the outstanding Securities on the Maturity Date of such principal or installment of principal or interest in accordance with the terms of this Indenture and of such Securities; PROVIDED, HOWEVER, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries)the Securities shall have occurred and be continuing on the date of such deposit or, (8) or insofar as Sections 6.01(8) and (9) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or because of failure to comply with clause (3) of the first paragraph of Section 5.01 covenant defeasance shall not result in a breach or because of any failure to purchase Notes pursuant to Sections 4.09 violation of, or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(iv) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; PROVIDED, HOWEVER, that if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, no opinion needs to be given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the Trustee's possession prior to such court ruling to the extent not paid to Holders of Securities, the Trustee shall acknowledge will hold, for the benefit of the Holders of Securities, a valid and enforceable security interest in writing such trust funds that is not avoidable in bankruptcy or otherwise, subject only to principles of equitable subordination, (B) the discharge Holders of those obligations that Securities will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used, and (C) no property, rights in property or other interests granted to the Trustee or the Holders of Securities in exchange for or with respect to any of such funds will be subject to any prior rights of any other Person, subject only to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the same effect), but still subject to the foregoing clause (B); and
(vii) the Company terminatesshall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (A) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with and (B) if any other Indebtedness of the Company shall then be outstanding, such legal defeasance or covenant defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness.
(ce) Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in Counsel required by clause (d)(iv) above of this Article Eight shall survive until the Notes have been surrendered Section 8.02 need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the Maturity Date within one year or (iii) are no longer outstanding to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
(f) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (f), the "Trustee") pursuant to paragraph (d) above in respect of the last outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any of its Affiliates) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law.
(g) Upon satisfaction by the Company of the conditions to its legal defeasance or covenant defeasance, the Lien of this Indenture on all the Collateral will terminate and all the Collateral will be released without any further action by the Trustee hereunder or any other person. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 28.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (d) above which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (Renco Steel Holdings Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all outstanding the Outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “Outstanding” only for the purposes of Default or the sections and matters under the Indenture referred to in (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Notes and the Indenture insofar as such Notes are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of Outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (ii) the Company’s obligations to issue temporary Notes, register the transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain an office or agency for payments in respect of the Notes, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith and (iv) the Legal Defeasance provisions of the Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Guarantors shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 403 through 410 with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “Outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 601(3), (5), (6), nor shall any event referred to in Section 601(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this the Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the Outstanding Notes:
(1) The Company may exercise its must irrevocably deposit with the Trustee, in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If Tender or U.S. Government Obligations for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under this Indenture shall terminate. If United States of America is pledged or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the Company exercises its Covenant Defeasance option, reinvestment of such interest and principal and after payment of all federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants selected by 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 interest on all the Outstanding Notes may on the dates on which any such payments are due and payable in accordance with the terms of the Indenture and of the Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officer’s Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Section 601(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officer’s Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction the Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee, confirming that Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an “investment company” under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officer’s Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of preferring the Holders of Notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(9) The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Trustee and stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 1101 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Notes or the Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 6.07 of the Base Indenture. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by paragraph (5) above need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Third Supplemental Indenture (Graphic Packaging International, LLC)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) below be or paragraph (c), as set forth below, applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to be released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth in paragraph (d) below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the Principal of and interest on such Securities when such payments are due, (ii) the Company's obligations with respect to such Securities under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.02, 7.07, 7.08, 8.03, 8.04 and 8.05, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and (iv) this Section 4.04 and Sections 4.09 through 4.19 and clause 8.02. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (3b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article V and in Sections 4.10 through 4.16 with respect to the outstanding Securities on and after the date the conditions set forth in paragraph (d) below are satisfied (hereinafter, "covenant defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Section 8.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) U.S. Legal Tender in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal of and interest in respect thereof in accordance with their terms will provide (without giving effect to the reinvestment of any interest thereon), not later than one (1) day before the due date of any payment, U.S. Legal Tender in an amount, or (C) a combination thereof, sufficient, in the opinion of a firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge Principal of and interest, on the outstanding Securities on the Maturity Date of such Principal or installment of Principal or interest in accordance with the terms of this Indenture and of such Securities; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable Company Order instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the Note Guarantees date of such deposit or, in so far as Sections 6.01(viii) and all obligations (ix) are concerned, at any time during the period ending on the 91st day after the date of the Subsidiary Guarantors under such deposit (it being understood that this Indenture condition shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because deemed satisfied until the expiration of an Event of Default specified under Sections 6.01(4such period);
(iii) such legal defeasance or covenant defeasance shall not result in a breach or violation of, (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them is bound;
(iv) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Companyoutstanding Securities will not recognize income, gain or loss for federal income tax purposes as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of any other Indebtedness of the Company after the 91st day following the deposit, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law;
(vii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (A) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with; and (B) if any other Indebtedness of the Company (including, without limitation, the Senior Indebtedness) shall then be outstanding, such legal defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness; and
(viii) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Securities over other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of Principal, and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 8.02 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (cd) Notwithstanding above which, in the provisions opinion of Sections 8.01(a) and (b), the provisions a firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof which would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.038.3.
(b) Subject Upon the Company's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall, subject to the satisfaction of the conditions set forth in Section 8.3, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.4 hereof and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), and after giving effect Holders of the Notes and any amounts deposited under Section 8.3 hereof shall cease to such Legal Defeasancebe subject to any obligations to, or the rights of, any omission holder of Senior Debt or Guarantor Senior Debt under Article X or XII, as the case may be, or otherwise, except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to comply with receive solely from the trust fund described in Section 8.4 hereof, and as more fully set forth in such obligations shall no longer constitute a Default or Event Section, payments in respect of Default or the principal of and interest on such Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Article II and Section 4.2 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.3 hereof, be released from its obligations under Section 4.03 (other than 4.5, Sections 4.10 through 4.21 and Article V hereof with respect to the existence outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes) and Holders of the Company)Notes and any amounts deposited under Section 8.3 hereof shall cease to be subject to any obligations to, Section 4.04 and Sections 4.09 through 4.19 and clause (3) or the rights of, any holder of Senior Debt or Guarantor Senior Debt under Article X or Article XII or otherwise. For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Notes, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4)Section 6.1(3) hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.3 hereof, the Trustee shall acknowledge those events described in writing the discharge of Section 6.1 (except those obligations that the Company terminates.
events described in Section 6.1(1), (c) Notwithstanding the provisions of Sections 8.01(a) 2), and (b6), the provisions ) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Companyoption, at any time, elect to have either the Legal Defeasance option Section 7.1(b) or the Covenant Defeasance option in paragraph (bc) below be applied to all outstanding Outstanding Notes upon compliance with the conditions set forth in Section 8.037.2.
(b) Subject Upon the Company's exercise under paragraph (a) of this Section 7.1 of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 7.2, be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in Section 7.2 (including Section 7.2(4)(b)) are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes on the 91st day after the deposit specified in Section 7.2(1), which shall thereafter be deemed to be Outstanding only for the purposes of Section 7.3 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in clause (i) or (ii) of this paragraph (b), and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 7.3, and after giving effect to as more fully set forth in Section 7.3, payments in respect of the principal of, premium, and interest on such Legal Defeasance, any omission to comply with Notes when such obligations shall no longer constitute a Default or Event of Default or payments are due,
(ii) their the Company's obligations with respect to such Notes under Article II and Section 3.2,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith, and
(iv) this Article VII. Subject to compliance with this Article VII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) of this Section 7.1.
(c) Upon the Company's exercise under paragraph (a) of this Section 7.1 of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the applicable conditions set forth in Section 7.2, be released from its obligations under Section 4.03 the covenants contained in Sections 3.4, 3.5, 3.8 through 3.19, and 4.1(a)(2), (other than 3) and (4) with respect to the existence of Outstanding Notes on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be Outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company, its Restricted Subsidiaries and the Note Guarantors may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4Section 5.1(a)(3), (4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default5.2, but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesthereby.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 1 contract
Samples: Indenture (JLG Industries Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company Issuers may, at its their option by Board Resolution of the Board of Directors of the CompanyResolutions, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Issuers' exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company Issuers shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all discharged from their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, such Legal Defeasance means that the Issuers shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Company)Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities when such payments are due, and (ii) obligations listed in Section 4.04 and Sections 4.09 through 4.19 and clause 8.03, subject to compliance with this Section 8.01. The Issuers may exercise their option under this paragraph (3b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Issuers' exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Issuers shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.23 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Company Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Issuers, their Subsidiaries and any Pledgor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(c), nor shall any event referred to in Section 6.01(d), (5e), (6), h) or (7i) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its Issuers shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under United States of America is pledged ("U.S. GOVERNMENT OBLIGATIONS") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants 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 interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment and of the Notes may Securities;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officers' Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(f) or (g) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers' Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which either Issuer or any of their Subsidiaries is a party or by which it or its property is bound;
(i) In the event the Issuers elect paragraph (b) hereof, the Issuers shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that Holders of the conditions set forth herein Securities will not recognize income gain or loss for Federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to Federal income taxes in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Issuers elect paragraph (c) hereof, the Issuers shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of the CompanySecurities will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The deposit shall not result in either Issuer, the Trustee shall acknowledge in writing or the discharge trust becoming or being deemed to be an "investment company" under the Investment Company Act of those obligations that the Company terminates.1940;
(c7) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight The Issuers shall survive until the Notes have been surrendered delivered to the Trustee for cancellation an Officer's Certificate, in form and are no longer outstanding pursuant substance reasonably satisfactory to the last paragraph Trustee, stating that the deposit under clause (1) was not made by the Issuers or any Subsidiary of either Issuer with the intent of preferring the Holders over any other creditors of the Issuers defeating, hindering, delaying or defrauding any other creditors of the Issuers or any Subsidiary of either Issuer or others;
(8) The Issuers shall have delivered to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the trust funds will not be subject to the rights of holders of Indebtedness of either Issuer other than the Securities and (B) assuming no intervening bankruptcy of either Issuer between the date of deposit and the 91st day following the deposit and that no Holder of Securities is an insider of ei- ther Issuer, after the passage of 90 days following the deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(9) The Issuers have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 28.01 have been complied with; PROVIDED, HOWEVER, that no deposit under clause (1) above shall be effective to terminate the obligations of the Issuers under the Securities, the Security Documents or this Indenture prior to 90 days following any such deposit. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, the Issuers 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 Issuers.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes Securities upon compliance with the conditions set forth in Section 8.039.03.
(b) Subject Upon exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and, if it so selects, each of the Guarantors, shall, subject to the satisfaction of the conditions set forth in Section 9.03, be deemed to have been discharged from its obligations with respect to all outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 9.04 hereof and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the Notes such Securities and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in Section 9.04 hereof, and after giving effect to as more fully set forth in such Legal DefeasanceSection, any omission to comply with payments in respect of the principal of and interest on such obligations shall no longer constitute a Default or Event of Default or Securities when such payments are due;
(ii) their the Company's obligations with respect to such Securities under Article Two and Section 4.02 hereof;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith; and
(iv) this Article Nine. Subject to compliance with this Article Nine, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the conditions set forth in Section 9.03 hereof, be released from its obligations under Section the covenants contained in Sections 4.03 (other than through 4.06, inclusive, Sections 4.08 through 4.10, inclusive, Sections 4.12 through 4.20, inclusive, and Article Five hereof with respect to the existence of outstanding Securities on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 the Securities shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and clause the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (3) of it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Securities, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4)Section 6.01(iii) hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 9.03 hereof, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.01(iv), 6.01(v) and (b), the provisions 6.01(vi) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under the Indenture referred to in (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Notes and the Indenture insofar as such Notes are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (ii) the Company’s obligations to issue temporary Notes, register the transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain an office or agency for payments in respect of the Notes, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith and (iv) the Legal Defeasance provisions of the Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Guarantors shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 4.03 through 4.21 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(3), (5), (6), nor shall any event referred to in Section 6.01(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this the Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Notes:
(1) The Company may exercise its must irrevocably deposit with the Trustee, in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If Tender or U.S. Government Obligations for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under this Indenture shall terminate. If United States of America is pledged or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the Company exercises its Covenant Defeasance option, reinvestment of such interest and principal and after payment of all federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants selected by 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 interest on all the outstanding Notes may on the dates on which any such payments are due and payable in accordance with the terms of the Indenture and of the Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officers’ Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers’ Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction the Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee, confirming that Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an “investment company” under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officers’ Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of preferring the Holders of Notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(9) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 7.01 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Notes or the Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 7.07. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by paragraph (5) above need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from their obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and after giving effect to premium, if any, interest and Additional Interest, if any, on such Legal DefeasanceNotes when such payments are due, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01 and (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's obligations in connection therewith. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.23 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.03, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.01(3), 6.01(4), 6.01(5), 6.01(8), 6.01(9) and (b), the provisions 6.01(10) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Samples: Indenture (Eschelon Telecom Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities and the Subsidiary Guarantors at any time may terminate Guarantees on the date the conditions set forth below are satisfied (hereinafter, “legal defeasance”). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be “outstanding” only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the Notes such Securities and Guarantees and this Indenture insofar as such Securities and Guarantees are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities and Guarantees when such payments are due, (ii) the Company’s obligations with respect to such Securities and Guarantees under Sections 2.05, 2.06, 2.07, 2.08, 4.02, 7.07, 7.08, 8.04 and 8.05, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 8.02. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company’s exercise under paragraph (a) of the option applicable to this paragraph (c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03, 4.07, 4.09 and 4.11 through 4.21 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasancecovenant defeasance”), and after giving effect the Securities shall thereafter be deemed to such Legal Defeasancebe not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any omission to comply thereof) in connection with such obligations covenants, but shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (continue to be deemed “outstanding” for all other than purposes hereunder. For this purpose, such covenant defeasance means that, with respect to the existence of the Company)outstanding Securities, Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal of and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge principal of, premium, if any, and interest on the outstanding Securities on the Maturity Date of such principal or installment of principal or interest in accordance with the terms of this Indenture and of such Securities; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries)the Securities shall have occurred and be continuing on the date of such deposit or, (8) or insofar as Sections 6.01(8) and (9) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or because of failure to comply with clause (3) of the first paragraph of Section 5.01 covenant defeasance shall not result in a breach or because of any failure to purchase Notes pursuant to Sections 4.09 violation of, or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(iv) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the date of deposit and that no Holder is an insider of the Company, (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; provided, however, that if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, no opinion needs to be given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the Trustee’s possession prior to such court ruling to the extent not paid to Holders of Securities, the Trustee shall acknowledge will hold, for the benefit of the Holders of Securities, a valid and enforceable security interest in writing such trust funds that is not avoidable in bankruptcy or otherwise, subject only to principles of equitable subordination, (B) the discharge Holders of those obligations that Securities will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used, and (C) no property, rights in property or other interests granted to the Trustee or the Holders of Securities in exchange for or with respect to any of such funds will be subject to any prior rights of any other person, subject only to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the same effect), but still subject to the foregoing clause (B); and
(vii) the Company terminates.
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that (A) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) Notwithstanding above, as the case may be, have been complied with and (B) if any other Indebtedness of the Company shall then be outstanding, such legal defeasance or covenant defeasance will not violate the provisions of Sections 8.01(a) and (b)the agreements or instruments evidencing such Indebtedness. Notwithstanding the foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 Counsel and 7.08 and in a ruling from the Internal Revenue Service required by clause (iv) above of this Article Eight shall survive until the Notes have been surrendered Section 8.02 need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the Maturity Date within one year or (iii) are no longer outstanding to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the “Trustee”) pursuant to paragraph (d) above in respect of the last outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any of its Affiliates) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 28.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (d) above which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (Doe Run Resources Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.0312.03.
(b) Subject Upon the Company's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 12.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 12.04 hereof and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 12.04 hereof, and after giving effect to as more fully set forth in such Legal DefeasanceSection 12.04, any omission to comply with payments in respect of the principal of, premium, if any, and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Article 2 and Section 4.02 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article 12. Subject to compliance with this Article 12, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the conditions set forth in Section 12.03 hereof, be released from its obligations under Section 4.03 (other than the covenants contained in Sections 4.04, 4.05, 4.06, 4.07, 4.08 and 4.10 through 4.21 and Articles 5, 8, 9 and 10 hereof with respect to the existence of outstanding Notes on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and clause the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (3) of it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Notes, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4Section 6.01(iii), (56.01(iv), (6), (7) (with respect only to Significant Subsidiaries), (8) and (96.01(v) and the limitations contained in clause (36.01(ix) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Defaulthereof, but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesthereby.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company Issuer may, at its option by Board Resolution Resolutions of the Board of Directors of the CompanyIssuer, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes Securities upon compliance with the conditions set forth in Section 8.038.3.
(b) Subject Upon the Issuer's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.3, be deemed to have been discharged from its obligations with respect to all outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.4 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the Notes such Securities and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in Section 8.4, and after giving effect to as more fully set forth in such Legal DefeasanceSection, any omission to comply with payments in respect of the Accreted Value of, premium, if any, and interest, if any, on such obligations shall no longer constitute a Default or Event of Default or Securities when such payments are due, (ii) their the Company's obligations with respect to such Securities under Article Two and Section 4.03 4.2, (other than iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article Eight. Subject to compliance with this Article Eight, the Issuer may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Issuer's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.3, be released from its obligations, if any, under the covenants contained in Sections 4.3 and 4.4 and Sections 4.12 through 4.17 and Article Five with respect to the existence of outstanding Securities on and after the Companydate the conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), Section 4.04 and Sections 4.09 through 4.19 the Securities shall thereafter be deemed not "OUTSTANDING" for the purposes of any direction, waiver, consent or declaration or act of Holders (and clause the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "OUTSTANDING" for all other purposes hereunder (3) of it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Securities, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.1(iii), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby. In addition, upon the Issuer's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.3 hereof, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.1(iii), 6.1(iv) and (b), the provisions 6.1(v) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.Default. -95-
Appears in 1 contract
Samples: Indenture (Salt Holdings Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities and the Guarantees on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and Guarantees and this Indenture insofar as such Securities and Guarantees are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities and Guarantees when such payments are due, (ii) the Company's obligations with respect to such Securities and Guarantees under Sections 2.05, 2.06, 2.07, 2.08, 4.02, 7.07, 7.08, 8.04 and 8.05, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 4.04 and Sections 4.09 through 4.19 and clause 8.02. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (3b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03, 4.07, 4.09 and 4.11 through 4.21 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal of and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge principal of, premium, if any, and interest on the outstanding Securities on the Maturity Date of such principal or installment of principal or interest in accordance with the terms of this Indenture and of such Securities; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries)the Securities shall have occurred and be continuing on the date of such deposit or, (8) or insofar as Sections 6.01(8) and (9) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or because of failure to comply with clause (3) of the first paragraph of Section 5.01 covenant defeasance shall not result in a breach or because of any failure to purchase Notes pursuant to Sections 4.09 violation of, or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(iv) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the date of deposit and that no Holder is an insider of the Company, (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; provided, however, that if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, no opinion needs to be given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the Trustee's possession prior to such court ruling to the extent not paid to Holders of Securities, the Trustee shall acknowledge will hold, for the benefit of the Holders of Securities, a valid and enforceable security interest in writing such trust funds that is not avoidable in bankruptcy or otherwise, subject only to principles of equitable subordination, (B) the discharge Holders of those obligations that Securities will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used, and (C) no property, rights in property or other interests granted to the Trustee or the Holders of Securities in exchange for or with respect to any of such funds will be subject to any prior rights of any other person, subject only to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the same effect), but still subject to the foregoing clause (B); and
(vii) the Company terminates.
shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (A) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) Notwithstanding above, as the case may be, have been complied with and (B) if any other Indebtedness of the Company shall then be outstanding, such legal defeasance or covenant defeasance will not violate the provisions of Sections 8.01(a) and (b)the agreements or instruments evidencing such Indebtedness. Notwithstanding the foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 Counsel and 7.08 and in a ruling from the Internal Revenue Service required by clause (iv) above of this Article Eight shall survive until the Notes have been surrendered Section 8.02 need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the Maturity Date within one year or (iii) are no longer outstanding to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the last outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any of its Affiliates) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 28.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (d) above which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (Doe Run Resources Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Company)Sections and matters under this Indenture referred to in (i) and (ii) below, Section 4.04 and Sections 4.09 through 4.19 to have satisfied all its other obligations under such Securities and clause this Indenture insofar as such Securities are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (3i) the rights of the first paragraph Holders of Section 5.01outstanding Securities to receive payment in respect 103 of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company may omit Company's obligations to comply with issue temporary Securities, register the transfer or exchange of any Securities, replace mutilated, destroyed, lost or stolen Securities and shall have no liability maintain an office or agency for payments 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4)the Securities, (5)iii) the rights, (6)powers, (7) (with respect only to Significant Subsidiaries)trusts, (8) duties and immunities of the Trustee, and (9iv) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder Legal Defeasance provisions of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”)Indenture. The Company may exercise its Legal Defeasance option under this paragraph (b) notwithstanding its the prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors option under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered below with respect to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Securities.
Appears in 1 contract
Samples: Indenture (Simonds Industries Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company and each Guarantor shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities and Guarantees, respectively, on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company and each Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities and the Guarantees, respectively, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections 8.02(cand matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and Guarantees, respectively, and this Indenture insofar as such Securities and Guarantees, respectively, are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities when such payments are due and (ii) obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be released and discharged from their respective obligations under the Notes any covenant contained in Sections 4.03, 4.04, 4.06 through 4.19 and this Indenture 5.01(b) and (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (iic) their obligations under Section 4.03 (other than with respect to the existence of outstanding Securities on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and clause (3the consequences of any thereof) of in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder. For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Securities, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3), nor shall any event referred to in Section 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), or (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its Legal Defeasance option notwithstanding its prior exercise shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, cash in U.S. dollars, non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes full faith and credit of the United States of America is pledged ("U.S. Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants 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 interest on the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Securities or on the applicable Redemption Date, as the case may be;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an the TIA;
(3) No Default or Event of Default and (i) shall have occurred or be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), such deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the Incurrence of Indebtedness, all or a portion of which will be used to defease the Securities concurrently with such Incurrence and the grant of any Lien securing such Indebtedness) or (ii) insofar as an Event of Default pursuant to either Section 6.01(6) or Section 6.01(7) is concerned, shall occur on or before the 91st day after the date of such deposit;
(4) Such deposit will not result in a Default under this Indenture or a breach or violation of, or constitute a default under, this Indenture. Upon satisfaction , the Senior Bank Facilities or any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or its property is bound (other than a Default or Event of Default resulting from the Incurrence of Indebtedness, all or a portion of which will be used to defease the Securities concurrently with such Incurrence and the grant of any Lien securing such Indebtedness); (i) in the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that, in the case of clauses (i) and (ii), Holders of the conditions set forth herein Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and upon request of the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(5) The deposit shall not result in the Company, the Trustee shall acknowledge in writing or the discharge trust becoming or being deemed to be an "investment company" under the Investment Company Act of those obligations that the Company terminates.1940;
(c6) Notwithstanding the provisions of Sections 8.01(aThe Holders shall have a perfected security interest under applicable law in cash in U.S. dollars and/or U.S. Government Obligations deposited pursuant to Section 8.01(d)(1);
(7) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight The Company shall survive until the Notes have been surrendered delivered to the Trustee for cancellation an Officers' Certificate, in form and are no longer outstanding pursuant substance reasonably satisfactory to the last paragraph Trustee, stating that the deposit under clause (i) was not made by the Company with the intent of preferring the Holders of the Securities over any other creditors of the Company or others or of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(8) 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, (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Securities and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Securities is an insider of the Company, after the 91st day following the deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(9) The Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 28.01 have been complied with. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Aearo CO I)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purpose of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company's obligations with respect to such Securities under Sections 2.6, 2.7 and 4.16, and, with respect to the Trustee, under Section 4.04 7.7, (iii) the rights, powers, trusts, duties and Sections 4.09 through 4.19 immunities of the Trustee hereunder and clause the Company's obligations in connection herewith, and (3iv) this Section 8.2 and Section 8.5. Subject to compliance with this Section 8.2, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article 5 and in Sections 4.5, 4.7 through 4.12, 4.14 and 4.15 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.1(iv), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Section 8.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (x) cash in U.S. dollars or (y) direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of America for the payment of which guarantee or obligation the full faith and credit of the United States is pledged ("U.S. Government Obligations") maturing as to principal, premium, if any, and interest in such amounts of money and at such times as are sufficient without consideration of any reinvestment of such interest, to pay principal of and interest on the outstanding Securities not later than one day before the due date of any payment, or (z) a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge principal of, premium, if any, and interest on the outstanding Securities on the Maturity Date or otherwise in accordance with the terms of this Indenture and of such Securities; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the Note Guarantees and all obligations date of such deposit or, insofar as Section 6.1(vii) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest with respect to any Securities of the Subsidiary Guarantors under this Indenture Company;
(iv) such legal defeasance or covenant defeasance shall terminate. If the Company exercises its Covenant Defeasance optionnot result in a breach or violation of, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other material agreement or instrument to which the Company or any Restricted Subsidiary is a party or by which it is bound;
(v) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel, stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the Issue Date, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(vi) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel, to the effect that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vii) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of senior indebtedness including, without limitation, those arising under this Indenture. Upon satisfaction , after the 91st day following the deposit, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law;
(viii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with; and
(ix) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the conditions set forth herein Securities over other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others.
(e) All money and upon request U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Affiliate of the Company) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 8.2 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (cd) Notwithstanding above which, in the provisions opinion of Sections 8.01(a) and (b), the provisions a nationally recognized firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof which would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (Dart Group Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from their obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, premium, if any, and after giving effect to interest on such Legal DefeasanceNotes when such payments are due, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01 and (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's obligations in connection therewith. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.25 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in Section 8.03, Sections 6.01(3), 6.01(4), 6.01(5) being referred and 6.01(6) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or U.S. Government Obligations or a combination thereof in such amounts and at such times as are sufficient, in the opinion of its Covenant Defeasance option. If a nationally recognized firm of independent public accountants, to pay the principal of and interest on the outstanding Notes to maturity or redemption; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company exercises its instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Defeasance option, payment Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes may not be accelerated because of an to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event such deposit or insofar as Events of Default specified under Sections 6.01(4), from bankruptcy or insolvency events are concerned at any time in the period ending on the 91st day after the date of deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the Incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such Incurrence);
(3) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than this Indenture. Upon satisfaction ) to which the Company or any of its Subsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance contemplated hereby and upon request will be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred or (ii) in the event the Company elects paragraph (c) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance contemplated hereby and will be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Notes and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the date of deposit and that no Holder of Notes is an insider of the Company, after the 91st day following the date of deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(7) The Company has delivered to the Trustee shall acknowledge in writing an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the discharge of those obligations that the Company terminates.
(c) defeasance contemplated by this Section 8.01 have been complied with. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) will become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Companyoption, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) below or (c) of this Section 8.1 be applied to all outstanding Outstanding Notes of any Class upon compliance with the conditions set forth in Section 8.038.2.
(b) Subject Upon the Company's exercise under paragraph (a) of this Section 8.1 of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.2, be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in Section 8.2 (including Section 8.2(4)(b)) are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of Section 8.3 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in clause (i) or (ii) of this paragraph (b), and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and after giving effect to as more fully set forth in Section 8.3, payments in respect of the principal of and interest on such Legal Defeasance, any omission to comply with Notes when such obligations shall no longer constitute a Default or Event of Default or payments are due,
(ii) their the Company's obligations with respect to such Notes under Article II and Section 3.2,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith, and
(iv) this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) of this Section 8.1.
(c) Upon the Company's exercise under paragraph (a) of this Section 8.1 of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the applicable conditions set forth in Section 8.2, be released from its obligations under Section 4.03 (other than the covenants contained in Conditions 10(b) through 10(e) and Conditions 10(g) through 10(i) of the Terms and Conditions and Sections 3.2 through 3.7 and Article IV of this Indenture with respect to the existence of Outstanding Notes on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 the Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and clause the consequences of any thereof) in connection with such covenants, but shall continue to be Outstanding for all other purposes hereunder (3) of it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01Outstanding Notes, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4clauses (iii), (5iv), (6v), (7vi) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3x) of Condition 11 of the first paragraph of Section 5.01 Terms and the events specified in such Sections and clauses shall no longer constitute an Event of DefaultConditions, but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesthereby.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of the Holders of outstanding Securities to receive payment in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company)'s obligations to issue temporary Securities, Section 4.04 register the transfer or exchange of any Securities, replace mutilated, destroyed, lost or stolen Securities and Sections 4.09 through 4.19 maintain an office or agency for payments in respect of the Securities, (iii) the rights, powers, trusts, duties and clause immunities of the Trustee, and (3iv) the defeasance provisions of this Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.13 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(3) or (4), (5nor shall any event referred to in Section 6.01(5), (6), (7) (but only with respect only to a Significant Subsidiaries), Subsidiary) or (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance optionthereby. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises option or its Covenant Defeasance option, each Subsidiary Guarantor will be released from all of its obligations with respect to its Subsidiary Guaranty.
(d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(1) The Company shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. Legal Tender or U.S. Government Obligations maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and principal and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Notes may Trustee, in the opinion of a nationally recognized firm of Independent public accountants 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 interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Securities;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received Officers' Certificates stating that No Default of Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default specified under Sections 6.01(4)with respect to the Securities shall have occurred and be continuing on the date of such deposit or, (5), (6), insofar as Section 6.01(6) or (7) is concerned, at any time during the period ending on the 91st day after the date of such deposit (with respect only it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers' Certificates stating that such deposit will not result in a Default under this Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to Significant Subsidiaries)which the Company or any of its Subsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee to the effect that (8) A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (9B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that Holders of the Securities will not recognize income gain or because loss for Federal income tax purposes as a result of failure such deposit and the defeasance contemplated hereby and will be subject to comply with Federal income taxes in the same manner and at the same times as would have been the case of such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, to the effect that, Holders of the Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) 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 of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officers' Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (31) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure was not made by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default Company with the intent of defeating, hindering, delaying or Event of Default under this Indenture. Upon satisfaction defrauding any other creditors of the conditions set forth herein Company or any Subsidiary of the Company or others;
(8) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and upon request substance reasonably satisfactory to the Trustee, to the effect that, (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Securities and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Securities is an insider of the Company, after the Trustee shall acknowledge in writing passage of 90 days following the discharge of those obligations that deposit, the Company terminates.trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(c9) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered The Company has delivered to the Trustee for cancellation an Officers' Certificate and are no longer outstanding pursuant an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the last paragraph defeasance contemplated by this Section 8.01 have been complied with; provided, however, that no deposit -------- ------- under clause (1) above shall be effective to terminate the obligations of Section 2the Company under the Securities or this Indenture prior to 90 days following any such deposit. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Ametek Inc/)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all outstanding the Outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “Outstanding” only for the purposes of Default or the sections and matters under the Indenture referred to in (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Notes and the Indenture insofar as such Notes are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of Outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (ii) the Company’s obligations to issue temporary Notes, register the transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain an office or agency for payments in respect of the Notes, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith and (iv) the Legal Defeasance provisions of the Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Guarantors shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 403 through 410 with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “Outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 601(3), (5), (6), nor shall any event referred to in Section 601(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this the Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the Outstanding Notes:
(1) The Company may exercise its must irrevocably deposit with the Trustee, in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If Tender or U.S. Government Obligations for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under this Indenture shall terminate. If United States of America is pledged or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the Company exercises its Covenant Defeasance option, reinvestment of such interest and principal and after payment of all federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants selected by 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 interest on all the Outstanding Notes may on the dates on which any such payments are due and payable in accordance with the terms of the Indenture and of the Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officer’s Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Section 601(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officer’s Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction the Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee, confirming that Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an “investment company” under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officer’s Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of preferring the Holders of Notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(9) The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Trustee and stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 1101 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Notes or the Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 607 of the Base Indenture. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by paragraph (5) above need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Second Supplemental Indenture (Graphic Packaging Holding Co)
Legal Defeasance and Covenant Defeasance. (aA) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either Section 10.01(B) or Section 10.01(C) apply to the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) below be applied to all outstanding Notes Securities upon compliance with the applicable conditions set forth in Section 8.0310.01(D).
(bB) Subject Upon the Company’s exercise under Section 10.01(A) of the option applicable to Sections 8.02(c) and 8.03this Section 10.01(B), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Notes and this Indenture outstanding Securities on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be outstanding only for the purposes of Default or the Sections and matters under this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all their other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the Trust Fund described in Section 4.03 10.01(D) and as more fully set forth in Section 10.01(D) payments in respect of the principal of, and premium, if any, interest on such Securities when such payments are due and (other than ii) Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.10, 2.15, 2.16, 2.17, 3.05, 3.06, 4.01, 4.02, 4.05, 7.07 and 7.08 and Article X. The Company may exercise its option under this Section 10.01(B) notwithstanding the prior exercise of its option under Section 10.01(C) below with respect to the existence Securities.
(C) Upon the Company’s exercise, under Section 10.01(A) of the Companyoption applicable to this Section 10.01(C), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Section 5.01(C), Section 4.04 4.03 and Sections 4.09 4.08 through 4.19 4.27, inclusive, with respect to the outstanding Securities on and clause after the date the conditions set forth below are satisfied (3) of the first paragraph of Section 5.01a “Covenant Defeasance”), and the Securities shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause D) The following shall be the conditions to application of either Section 10.01(B) or Section 10.01(C) to the outstanding Securities:
(i) the Company shall have irrevocably deposited with the Trustee, in trust, for the benefit of the Holders, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof (collectively, the “Trust Funds”), in such amounts and at such times as are sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and premium, if any, and interest on the outstanding Securities on the stated dates for payment or Redemption, as the case may be;
(ii) being referred in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel that the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that the Holders and beneficial owners will not recognize income, gain or loss for federal income tax purposes as “a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance”). The , the Company may exercise its Legal Defeasance option notwithstanding its prior exercise shall have delivered to the Trustee an Opinion of its Counsel that the Holders and beneficial owners will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance option. If and will be subject to federal income tax on the Company exercises its Legal Defeasance optionsame amounts, payment of in the Notes may not be accelerated because of an Event of Default same manner and at the Note Guarantees and all obligations of same times as would have been the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its case if such Covenant Defeasance option, payment of the Notes may had not be accelerated because of an Event of Default specified under Sections 6.01(4), occurred;
(5), (6), (7iv) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default shall have occurred and be continuing on the date of such deposit pursuant to Section 10.01(D)(i) (except such Default or Event of Default resulting the borrowing of funds required to effect such deposit);
(v) such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that any other material agreement or instrument to which the Company terminates.or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(cvi) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight Company shall survive until the Notes have been surrendered delivered to the Trustee for cancellation and are no longer outstanding pursuant an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and
(vii) the Company shall have delivered to the last paragraph Trustee an Officers’ Certificate and an Opinion of Section 2Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as applicable, have been complied with.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon the Company's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.04 and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), and after giving effect Holders of the Notes and any amounts deposited under Section 8.03 shall cease to such Legal Defeasancebe subject to any obligations to, or the rights of, any omission holder of Senior Debt or Guarantor Senior Debt under Article Ten or Eleven, as the case may be, or otherwise, except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to comply with receive solely from the trust fund described in Section 8.04, and as more fully set forth in such obligations shall no longer constitute a Default or Event Section, payments in respect of Default or the principal of and interest on such Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Article Two and Section 4.02, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.03, be released from its obligations under Section the covenants contained in Sections 4.03 (other than through 4.08 and 4.10 through 4.19 and Article Five with respect to the existence outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes) and Holders of the Company)Notes and any amounts deposited under Section 8.03 shall cease to be subject to any obligations to, Section 4.04 and Sections 4.09 through 4.19 and clause (3) or the rights of, any holder of Senior Debt or Guarantor Senior Debt under Article Ten or Eleven or otherwise. For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Notes, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4Section 6.01(3), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.03, the Trustee shall acknowledge those events described in writing the discharge of Section 6.01 (except those obligations that the Company terminates.
events described in Section 6.01(1), (c) Notwithstanding the provisions of Sections 8.01(a2), (6) and (b7), the provisions ) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Samples: Indenture (Landmark Theatre Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and, if it so selects, each of the Guarantors, shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.04 hereof and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the Notes such Securities and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in Section 8.04 hereof, and after giving effect to as more fully set forth in such Legal DefeasanceSection, any omission to comply with payments in respect of the principal of and interest on such obligations shall no longer constitute a Default or Event of Default or Securities when such payments are due;
(ii) their the Company's obligations with respect to such Securities under Article Two and Section 4.02 hereof;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith; and
(iv) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.03 hereof, be released from its obligations under Section the covenants contained in Sections 4.03 through 4.06, inclusive, Sections 4.15 through 4.17, inclusive, Sections 4.21, 4.22 and 4.23, and Sections 5.01(A)(iii) and (other than iv) hereof with respect to the existence of outstanding Securities on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 the Securities shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and clause the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (3) of it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Securities, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4), (5), (6), (7Section 6.01(iii) (with respect only to Significant Subsidiaries), (8) and (9iv) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Defaulthereof, but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.03 hereof, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.01(v) and (b), the provisions 6.01(vi) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon the Company's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.04 hereof and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.04 hereof, and after giving effect to as more fully set forth in such Legal DefeasanceSection, any omission to comply with payments in respect of the principal of and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Article II and Section 4.02 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.03 hereof, be released from its obligations under Section 4.03 (other than the covenants contained in Sections 4.10 through 4.20 and Article Five hereof with respect to the existence of outstanding Notes on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and clause the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (3) of it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Notes, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference Reference elsewhere herein to any such covenant or by reason of any reference Reference in any such covenant to any other provision herein or in any other document and any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4)Section 6.01(3) hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.subject
Appears in 1 contract
Samples: Indenture (Del Monte Foods Co)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Notes outstanding Notes, the Guarantees and this Indenture the Collateral Agreements on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in clause (i) and (ii) below, and the Company and the Guarantors shall be deemed to have satisfied all their other obligations under such Notes and this Indenture, the Guarantees and the Collateral Agreements, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, and interest on such Notes when such payments are due, (ii) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01 and (other than iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence Notes.
(c) Upon the Company’s exercise under paragraph (a) of the option applicable to this paragraph (c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Sections 4.05 and 4.08, Sections 4.10 through 4.23 (provided that the release and discharge of the Company), ’s obligations under Section 4.04 4.23 shall in no way relieve the Company of its obligation to pay any Additional Interest when due and Sections 4.09 through 4.19 payable) and clause (32) of the first paragraph of Section 5.015.01 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes and the Guarantees, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.0.1, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company’s exercise under paragraph (a) hereof of the option applicable to this paragraph (c), subject to the satisfaction of the conditions set forth in paragraph (5)d) below, (6), (7Section 6.01(3) (with respect only solely as such Section 6.01(3) pertains to Significant Subsidiaries)Sections 4.05 and 4.08, Sections 4.10 through 4.23 (8) provided that the release and (9discharge of the Company’s obligations under Section 4.23 shall in no way relieve the Company of its obligation to pay any Additional Interest when due and payable) and the limitations contained in clause (32) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii5.01), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (56.01(5), (66.01(8), 6.01(9) and 6.01(10) shall not constitute Events of Default.
(7d) The following shall be the conditions to application of either paragraph (with respect only to Significant Subsidiaries), (8) or (9b) or because paragraph (c) above to the outstanding Notes:
(1) the Company shall have irrevocably deposited in trust with the Trustee, in trust, for the benefit of failure the Holders, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof, in such amounts and at such times as are sufficient, in the opinion of a nationally-recognized firm of independent public accountants, to comply with clause pay the principal of, and premium, if any, and interest on the outstanding Notes on the stated dates for payment or redemption, as the case may be;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that:
(a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or any Subsidiary loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to comply with any of federal income tax on the foregoing Sections shall constitute a same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default under shall have occurred and be continuing on the date of such deposit pursuant to clause (1) of this Indenture. Upon satisfaction paragraph (except such Default or Event of Default resulting from the failure to comply with Section 4.12 or Section 4.16 as a result of the conditions set forth herein and upon request borrowing of funds required to effect such deposit) or insofar as Defaults or Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the CompanyCompany or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and
(7) the Company shall have delivered to the Trustee an Officers, Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with. Notwithstanding the foregoing, the Trustee shall acknowledge in writing the discharge Opinion of those obligations that the Company terminates.
(cCounsel required by Section 8.01(d)(2) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) shall become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyDirectors, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.038.3.
(b) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (b), each of the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.3, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.4 hereof and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.4 hereof, and as more fully set forth in such Section, payments in respect of the principal of and interest on such Notes when and to the extent such payments are due, (ii) the Company's obligations with respect to such Notes under Article II and Section 4.2 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith, including Section 7.7 hereof and (iv) this Article VIII. Subject to Sections 8.02(ccompliance with this Article VIII, the Company may exercise its option under this paragraph (b) and 8.03notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), each of Holdings, the Company and the Subsidiary Guarantors at any time may terminate (i) all their shall, subject to the satisfaction of the conditions set forth in Section 8.3 hereof, be released from its obligations under the Notes covenants contained in Sections 4.8 through 4.14 and this Indenture (“Legal Defeasance”), Sections 4.16 through 4.18 and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than Article V hereof with respect to the existence of outstanding Notes on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company and its Subsidiaries may omit to comply with and shall have -80- no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4)Section 6.1(c) hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.3 hereof, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.1(c) and (b), the provisions 6.1(e) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Samples: Indenture (Big Flower Digital Services Delaware Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolutions, at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the Subsidiary Guarantors at any time may terminate other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their of its other obligations under the such Notes and this Indenture insofar as such Notes are concerned (“Legal Defeasance”and the Trustee, at the expense of the Company, shall 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 outstanding Notes to receive solely from the trust fund described in paragraph (d) below and after giving effect to as more fully set forth in such Legal Defeasanceparagraph, any omission to comply with payments in respect of the principal of and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Sections 2.5, 2.6, 2.7, 2.8, 4.2, 7.7, 7.8, 8.4 and 8.5 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 4.03 8.2. Subject to compliance with this Section 8.2, the Company may exercise its option under this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article V and in Sections 4.6 through 4.21 hereof with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with Section 6.1 hereof nor will any judgment default or default in respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer other Indebtedness constitute a Default or an Event of DefaultDefault under Section 6.1(a)(iv) or (v) hereof, but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Notes, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal of and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or) other qualifying trustee) to pay and discharge principal of and interest on the outstanding Notes on the Maturity Date of such principal or installment of principal or interest in accordance with the terms of this Indenture and of such Notes; PROVIDED, HOWEVER, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of with respect to the Notes may shall have occurred and be continuing on the date of such deposit or, insofar as Sections 6.1(a)(vii) and (viii) hereof are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be accelerated because deemed satisfied until the expiration of an Event of Default specified under Sections 6.01(4such period);
(iii) such legal defeasance or covenant defeasance shall not result in a breach or violation of, (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(iv) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company have received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; PROVIDED, HOWEVER, that if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, no opinion need be given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the Trustee's possession prior to such court ruling to the extent not paid to Holders of Notes, the Trustee will hold, for the benefit of the Holders of Notes, a valid and enforceable security interest in such trust funds that is not avoidable in bankruptcy or otherwise, subject only to principles of equitable subordination, (B) the Holders of Notes will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used, and (C) no property, rights in property or other interests granted to the Trustee or the Holders of Notes in exchange for or with respect to any of such funds will be subject to any prior rights of any other Person, subject only to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the same effect), but still subject to the foregoing clause (B); and
(vii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (A) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with and (B) if any other Indebtedness of the Company shall then be outstanding, such legal defeasance or covenant defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any of their respective Affiliates) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Section 8.2 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (cd) Notwithstanding above which, in the provisions opinion of Sections 8.01(a) and (b), the provisions a nationally recognized firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof which would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections 8.02(cand matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities when such payments are due, and (ii) obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.18 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holder; (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company its Subsidiaries may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(c), nor shall any event referred to in Section 6.01(d) or (5), (6), (7e) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security' agreement in form and substance satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may full faith and credit of the United States of America is pledged ("U.S. Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants 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 and Additional Interest, if any, and interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Securities;
(2) Such deposit shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received an Officers' Certificate stating that no Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the Note Guarantees and all obligations date of such deposit or, insofar as Section 6.01(f) or (g) is concerned, at any time during the Subsidiary Guarantors period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received an Officers' Certificate stating that such deposit will not result in a Default under this Indenture shall terminate. If or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company exercises or any of its Covenant Defeasance optionSubsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, payment the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that Holders of the Notes may Securities will not recognize income cram or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be accelerated because subject to Federal income taxes in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of an Event Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of Default specified under Sections 6.01(4)the Securities will not recognize income, (5), gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner arid at the same times as would have been the case if such deposit and defeasance had not occurred;
(6)) The Trustee shall have received an Opinion of Counsel stating that 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 of 1940;
(7) (with respect only The Company shall have delivered to Significant Subsidiaries)the Trustee an Officers' Certificate, (8) or (9) or because of failure in form and substance reasonably satisfactory to comply with the Trustee, stating that the deposit under clause (31) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure was not made by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event Company with the intent of Default under this Indenture. Upon satisfaction preferring the Holders over any other creditors of the conditions set forth herein Company defeating, hindering, delaying or defrauding any other creditors of the Company or any Subsidiary of the Company or others;
(8) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and upon request substance reasonably satisfactory to the Trustee, to the effect that (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Securities and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of 57 Securities is an insider of the Company, after the Trustee shall acknowledge in writing passage of 90 days following the discharge of those obligations that deposit, the Company terminates.trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(c9) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered The Company has delivered to the Trustee for cancellation an Officers' Certificate and are no longer outstanding pursuant an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the last paragraph defeasance contemplated by this Section 8.01 have been complied with; provided, however, that no deposit under clause (1) above shall be effective to terminate the obligations of Section 2the Company under the Securities or this Indenture prior to 90 days following any such deposit. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Leslies Poolmart Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Companyoption, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.038.2, elect to have either Section 8.1(b) or Section 8.1(c) be applied to the Outstanding Notes.
(b) Subject Upon the Company’s exercise under Section 8.1(a) of the option applicable to Sections 8.02(c) and 8.03this Section 8.1(b), the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”)shall, and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect subject to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein in Section 8.2, be deemed to have paid and upon request discharged the entire indebtedness represented by the Outstanding Notes on the 91st day after the deposit specified in Section 8.2(a) (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of the sections of this Indenture referred to in clause (i) or (ii) of this Section 8.1(b), and the Company shall have been deemed to have satisfied all their other obligations under such Notes, and hereunder (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (bsame), except for the provisions of Sections 2.02 through 2.11following provisions, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders to receive solely from the trust described in Section 8.2(a) below, as more fully set forth in such section, payments in respect of the principal of and interest on the Notes have been surrendered when such payments are due,
(ii) the Company’s obligations with respect to such Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payments,
(iii) the rights, powers, trusts, duties and immunities of the Trustee for cancellation hereunder and are no longer outstanding pursuant the Company’s obligations in connection therewith, and
(iv) this Article VIII. Subject to compliance with this Article VIII, the last paragraph Company may exercise its option under this Section 8.1(b) notwithstanding the prior exercise of its option under Section 28.1(c).
Appears in 1 contract
Samples: Indenture (Alestra)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections 8.02(cand matters under this Indenture referred to in (i) and 8.03(ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of the Holders of outstanding Securities to receive payments in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company's obligations to issue temporary Securities, register the transfer or exchange of any Securities, replace mutilated, destroyed, lost or stolen Securities and maintain an office or agency for payments in respect of the Securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's obligations in connection therewith and (iv) the Legal Defeasance provisions of this Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.21 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(3), (5), (6), nor shall any event referred to in Section 6.01(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its must irrevocably deposit with the Trustee, in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under United States of America is pledged ("U.S. Government Obligations") or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and principal and after payment of all federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants, selected by 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 interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment and of the Notes may Securities;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officers' Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers' Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of the conditions set forth herein Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, confirming that, Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an "investment company" under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officers' Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally;
(9) The Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Securities or this Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 7.07. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered Counsel required by paragraph (5) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Tenneco Automotive Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the outstanding Notes and this Indenture on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations under such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, interest and Additional Interest and Additional PIK Interest, if any, on such Notes when such payments are due, (ii) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01 and (other than iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Article Five, Sections 4.05, 4.06 and 4.08, and Sections 4.10 through 4.22 and Sections 4.24 through 4.27 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company’s exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in Section 8.03, Sections 6.01(3), 6.01(4), 6.01(5) being referred and 6.01(6) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company shall have irrevocably deposited in trust with the Trustee, for the benefit of the Holders and pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof, in such amounts and at such times as are sufficient, in the opinion of a nationally-recognized firm of independent public accountants, to pay the principal of, and premium, if any, interest and Additional Interest, if any, on the outstanding Notes, including any Additional PIK Interest (which, for this purpose, shall be payable in cash), on the stated dates for payment or redemption, as the case may exercise its be; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes to maturity or redemption;
(2) In the event the Company elects paragraph (b) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance option notwithstanding its prior exercise contemplated hereby and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the event the Company elects paragraph (c) above, the Company shall deliver to the Trustee an Opinion of its Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance option. If contemplated hereby and shall be subject to federal income tax in the Company exercises its Legal same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance option, payment of the Notes may had not be accelerated because of an occurred;
(4) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), such deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the borrowing of funds to fund the deposit referenced in clause (1) above);
(5) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than this Indenture. Upon satisfaction ) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) The Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the conditions set forth herein and upon request Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the CompanyCompany or others; and
(7) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, which Opinion of Counsel may be subject to customary assumptions and exclusions, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with. Notwithstanding the foregoing, the Trustee shall acknowledge in writing the discharge Opinion of those obligations that the Company terminates.
(cCounsel required by Section 8.01(d)(2) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) shall become due and payable on the maturity date within one year or are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Notes outstanding Notes, the Guarantees and this Indenture the Collateral Agreements on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in clause (i) and (ii) their obligations under Section 4.03 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01below, and the Company may omit and the Guarantors shall be deemed to comply with have satisfied all their other obligations under such Notes and this Indenture, the Guarantees and the Collateral Agreements, except for the following obligations, which shall have no liability survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of any termthe principal of, condition or limitation set forth in any and premium, if any, and interest on such covenantNotes when such payments are due, 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred obligations listed in Section 8.03, subject to as “Covenant Defeasance”)compliance with this Section 8.01 and (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith. The Company may exercise its Legal Defeasance option under this paragraph (b) notwithstanding its the prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors option under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered below with respect to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Notes.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under the Indenture referred to in (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Notes and the Indenture insofar as such Notes are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (ii) the Company’s obligations to issue temporary Notes, register the transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain an office or agency for payments in respect of the Notes, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith and (iv) the Legal Defeasance provisions of the Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Guarantors shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 4.03 through 4.13 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(3), (5), (6), nor shall any event referred to in Section 6.01(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this the Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Notes:
(1) The Company may exercise its must irrevocably deposit with the Trustee, in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If Tender or U.S. Government Obligations for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under this Indenture shall terminate. If United States of America is pledged or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the Company exercises its Covenant Defeasance option, reinvestment of such interest and principal and after payment of all federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants selected by 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 interest on all the outstanding Notes may on the dates on which any such payments are due and payable in accordance with the terms of the Indenture and of the Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officers’ Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers’ Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction the Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee, confirming that Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an “investment company” under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officers’ Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of preferring the Holders of Notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(9) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 7.01 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Notes or the Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 7.07. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by paragraph (5) above need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from their obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and after giving effect to premium, if any, interest and Additional Interest, if any, on such Legal DefeasanceNotes when such payments are due, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01 and (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's obligations in connection therewith. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.22 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein in Section 8.03, Sections 6.01(3), 6.01(4), 6.01(5) and upon request 6.01(6) shall not constitute Events of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesDefault.
(d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S. government obligations, or a combination thereof, in such amounts and at such times as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, interest and Additional Interest, if any, on the Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that: (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or (b) since the date of the Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit pursuant to clause (1) of this paragraph (except such Default or Event of Default resulting from the failure to comply with Section 4.12 as a result of the borrowing of funds required to effect such deposit) or insofar as Defaults or Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under the Indenture or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and
(8) the Company shall have delivered to the Trustee an Opinion of Counsel (subject to customary qualifications and exclusions) to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(2) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) shall become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Unless otherwise specified in a supplemental indenture as contemplated by Section 2.1 with respect to any series of Notes, the Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, with respect to the Notes of any series, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes of such series upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject to Sections 8.02(c) and 8.03, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight Company shall survive until the Notes be deemed to have been surrendered released and discharged from its obligations with respect to the Trustee outstanding Notes of such series on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes of such series, which shall thereafter be deemed to be "outstanding only for cancellation the purposes of paragraph (e) below and the other Sections of and matters under this Indenture applicable to such Notes referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Notes and this Indenture applicable to such Notes insofar as such Notes are no longer outstanding pursuant concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), and holders of such Notes and any amounts deposited under paragraph (d) below shall cease to the last paragraph of Section 2.be subject
Appears in 1 contract
Samples: Indenture (Sholodge Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution the resolution of the its Board of Directors of the CompanyDirectors, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) below or (c) of this Section 8.1 be applied to all outstanding Outstanding Notes upon compliance with the conditions set forth in Section 8.038.2.
(b) Subject Upon the Company’s exercise under paragraph (a) of this Section 8.1 of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.2, be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in Section 8.2 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of Section 8.3 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in clause (i) or (ii) of this paragraph (b), and to have satisfied all their its other obligations under the such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and as more fully set forth in Section 8.3, payments in respect of the principal of and interest on such Notes when such payments are due;
(ii) the Company’s obligations with respect to such Notes under Article II and Section 3.2;
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith; and
(iv) this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) of this Section 8.1.
(c) Upon the Company’s exercise under paragraph (a) of this Section 8.1 of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the applicable conditions set forth in Section 8.2, be released from its obligations under the covenants contained in Section 3.4, Section 3.6, Section 3.7, Section 3.8, Section 3.9, Section 3.10, Section 3.11, Section 3.12, Section 3.13, Section 3.14, Section 3.15, Section 3.16, Section 3.17, Section 3.18, Section 3.19, Section 3.20, Section 3.21, Section 3.22, Section 4.1(a)(i), Section 4.1(a)(iii), Section 4.1(a)(iv), Section 5.9, and Article XI with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Legal Covenant Defeasance”), and after giving effect to such Legal Defeasancethe Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any omission to comply thereof) in connection with such obligations covenants, but shall no longer constitute a Default or Event of Default or continue to be Outstanding for all other purposes hereunder (ii) their obligations under Section 4.03 (other than it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the existence of the Company)Outstanding Notes, Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4or in respect of Section 6.1(a)(iii), (5a)(iv)(except with respect to Section 4.1(a)(ii), (6a)(v) and (a)(vi)), (7) (with respect only to Significant Subsidiariesa)(v), (8) and a)(vi), (9a)(vii), (a)(viii), (a)(ix) and the limitations contained in clause or (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Defaulta)(x), but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesthereby.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities when such payments are due and any Guarantor's obligations in respect thereof -49- and (ii) obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.21 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Company Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company, its Subsidiaries and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(c), nor shall any event referred to in Section 6.01(d), (5), e) or (6), (7h) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may full faith and credit of the United States of America is pledged ("U.S. GOVERNMENT OBLIGATIONS") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants 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 interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Securities;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received Officers' Certificates stating that no Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the Note Guarantees and all obligations date of such deposit or, insofar as Section 6.01(f) or (g) is concerned, at any time during the Subsidiary Guarantors period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers' Certificates stating that such deposit will not result in a breach or violation of, or constitute a Default under this Indenture shall terminate. If or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company exercises or any of its Covenant Defeasance optionSubsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, payment the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that Holders of the Notes may Securities will not recognize income gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be accelerated because subject to Federal income taxes in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of an Event Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of Default specified under Sections 6.01(4)the Securities will not recognize income, (5), gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6)) The Trustee shall have received an Opinion of Counsel stating that 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 of 1940;
(7) (with respect only The Company shall have delivered to Significant Subsidiaries)the Trustee an Officer's Certificate, (8) or (9) or because of failure in form and substance reasonably satisfactory to comply with the Trustee, stating that the deposit under clause (31) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure was not made by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event Company with the intent of Default under this Indenture. Upon satisfaction preferring the Holders over any other creditors of the conditions set forth herein Company defeating, hindering, delaying or defrauding any other creditors of the Company or any Subsidiary of the Company or others;
(8) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and upon request substance reasonably satisfactory to the Trustee, to the effect that (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company or any Guarantor other than the Securities and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Securities is an insider of the Company, after the Trustee shall acknowledge in writing passage of 90 days following the discharge of those obligations that deposit, the Company terminates.trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(c9) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered The Company has delivered to the Trustee for cancellation an Officers' Certificate and are no longer outstanding pursuant an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the last paragraph defeasance contemplated by this Section 8.01 have been complied with; PROVIDED, HOWEVER, that no deposit under clause (1) above shall be effective to terminate the obligations of Section 2the Company under the Securities or this Indenture prior to 90 days following any such deposit. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from their obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, premium, if any, and after giving effect to interest on such Legal DefeasanceNotes when such payments are due, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01 and (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's obligations in connection therewith. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.25 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in Section 8.03, Sections 6.01(3), 6.01(4), 6.01(5) being referred and 6.01(6) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the -66- Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or U.S. Government Obligations or a combination thereof in such amounts and at such times as are sufficient, in the opinion of its Covenant Defeasance option. If a nationally recognized firm of independent public accountants, to pay the principal of and interest on the outstanding Notes to maturity or redemption; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company exercises its instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Defeasance option, payment Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes may not be accelerated because of an to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event such deposit or insofar as Events of Default specified under Sections 6.01(4), from bankruptcy or insolvency events are concerned at any time in the period ending on the 91st day after the date of deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the Incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such Incurrence);
(3) Such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than this Indenture. Upon satisfaction ) to which the Company or any of its Subsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance contemplated hereby and upon request will be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred or (ii) in the event the Company elects paragraph (c) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance contemplated hereby and will be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Notes and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the date of deposit and that no Holder of Notes is an insider of the Company, after the 91st day following the date of deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(7) The Company has delivered to the Trustee shall acknowledge in writing an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the discharge of those obligations that the Company terminates.
(c) defeasance contemplated by this Section 8.01 have been complied with. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) will become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Samples: Credit Agreement (Golfsmith International Holdings Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company Issuers may, at its their option by Board Resolution of the Board of Directors of the CompanyResolutions, at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Issuers' exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company Issuers shall be deemed to have been released and discharged from their obligations with respect to the outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Issuers shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the Subsidiary Guarantors at any time may terminate other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations under the such Notes and this Indenture insofar as such Notes are concerned (“Legal Defeasance”and the Trustee, at the expense of the Issuers, shall 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 outstanding Notes to receive solely from the trust fund described in paragraph (d) below and after giving effect to as more fully set forth in such Legal Defeasanceparagraph, any omission to comply with payments in respect of the principal of and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due, (ii) the Issuers' obligations with respect to such Notes under Sections 2.6, 2.7, 2.8, 2.9, 4.2, 7.7, 7.8, 8.4 and 8.5, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 8.2. Subject to compliance with this Section 8.2, the Issuers may exercise their obligations option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of their option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause Issuers' exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Issuers shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 4.6 through 4.24 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Company Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Notes, the Issuers may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with Section 6.1 nor will any judgment default or default in respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer other Indebtedness constitute a Default or an Event of DefaultDefault under Section 6.1(a)(v) or (vi), but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) the Issuers shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Notes, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal of and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge principal of and interest on the outstanding Notes on the Maturity Date of such principal or installment of principal or interest in accordance with the terms of this Indenture and of such Notes; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Issuers instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of with respect to the Notes may shall have occurred and be continuing on the date of such deposit or, insofar as Sections 6.1(a)(viii) and (ix) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be accelerated because deemed satisfied until the expiration of an Event of Default specified under Sections 6.01(4such period);
(iii) such legal defeasance or covenant defeasance shall not result in a breach or violation of, (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Issuers are parties or by which they are bound;
(iv) in the case of an election under paragraph (b) above, the Issuers shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Companyoutstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Issuers, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; provided, however, that if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Issuers, no opinion need be given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the Trustee's possession prior to such court ruling to the extent not paid to Holders of Notes, the Trustee will hold, for the benefit of the Holders of Notes, a valid and enforceable security interest in such trust funds that is not avoidable in bankruptcy or otherwise, subject only to principles of equitable subordination, (B) the Holders of Notes will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used, and (C) no property, rights in property or other interests granted to the Trustee or the Holders of Notes in exchange for or with respect to any of such funds will be subject to any prior rights of any other Person, subject only to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the same effect), but still subject to the foregoing clause (B); and
(vii) the Issuers shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (A) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with and (B) if any other Indebtedness of the Issuers shall then be outstanding, such legal defeasance or covenant defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (other than the Issuers or any of their respective Affiliates) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Section 8.2 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered deliver or pay to the Trustee for cancellation and are no longer outstanding pursuant Issuers from time to time upon the request, in writing, by the Issuers any money or U.S. Government Obligations held by it as provided in paragraph (d) above which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the last paragraph Trustee, are in excess of Section 2the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (Aoa Capital Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from their obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and after giving effect to premium, if any, interest and Additional Interest, if any, on such Legal DefeasanceNotes when such payments are due, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01 and (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's obligations in connection therewith. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.21 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth in Section 8.02, Sections 6.01(3), 6.01(4) and 6.01(5) shall not constitute Events of Default.
(d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company shall have irrevocably deposited in trust with the Trustee, for the benefit of the Holders, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, cash in U.S. Legal Tender dollars or non-callable U.S. Government Obligations or a combination thereof, in such amounts and at such times as are sufficient, in the opinion of a nationally-recognized firm of independent public accountants, to pay the principal of, and premium, if any, interest and Additional Interest, if any, on the outstanding Notes on the stated dates for payment or redemption, as the case may be; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes to maturity or redemption;
(2) In the event the Company elects paragraph (b) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United States of America, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance contemplated hereby and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) In the event the Company elects paragraph (c) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance contemplated hereby and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) No Default or Event of Default of the type described in Section 6.01(6) or (7) shall have occurred and be continuing on the date of such deposit or at any time in the period ending on the 91st day after the date of deposit;
(5) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default hereunder or under any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) The Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(7) The Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with; and
(8) The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that assuming no intervening bankruptcy of the Company between the date of deposit and upon request the 91st day following the date of deposit and that no Holder of Notes is an insider of the Company, after the Trustee 91st day following the date of deposit, the trust funds shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(2) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) shall become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities when such payments are due, (ii) the Company's obligations with respect to such Securities under Sections 2.05, 2.06, 2.07, 2.08, 4.02, 7.07, 7.08, 8.04 and 8.05, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 4.04 and Sections 4.09 through 4.19 and clause 8.02. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (3b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03, 4.07, 4.09 and 4.11 through 4.22 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal of and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge principal of, premium, if any, and interest on the outstanding Securities on the Maturity Date of such principal or installment of principal or interest in accordance with the terms of this Indenture and of such Securities; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries)the Securities shall have occurred and be continuing on the date of such deposit or, (8) or insofar as Sections 6.01(8) and (9) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or because of failure to comply with clause (3) of the first paragraph of Section 5.01 covenant defeasance shall not result in a breach or because of any failure to purchase Notes pursuant to Sections 4.09 violation of, or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(iv) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; provided, however, that if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, no opinion needs to be given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the Trustee's possession prior to such court ruling to the extent not paid to Holders of Securities, the Trustee will hold, for the benefit of the Holders of Securities, a valid and enforceable security interest in such trust funds that is not avoidable in bankruptcy or otherwise, subject only to principles of equitable subordination, (B) the Holders of Securities will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used, and (C) no property, rights in property or other interests granted to the Trustee or the Holders of Securities in exchange for or with respect to any of such funds will be subject to any prior rights of any other Person, subject only to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the same effect), but still subject to the foregoing clause (B); and
(vii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (A) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with and (B) if any other Indebtedness of the Company shall then be outstanding, such legal defeasance or covenant defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any of its Affiliates) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 8.02 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (cd) Notwithstanding above which, in the provisions opinion of Sections 8.01(a) and (b), the provisions a nationally recognized firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof which would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (Wci Steel Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.038.3.
(b) Subject Upon the Company's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”)shall, and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect subject to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein in Section 8.3, be deemed to have been discharged from their obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and upon request discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.4 hereof and the other Sections of this Indenture referred to in (i) through (iv) below, and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (bsame), and the following provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes have been surrendered to receive solely from the Trustee for cancellation trust fund described in Sections 8.3 and 8.4 hereof, and as more fully set forth in such Sections, payments in respect of the principal of (and premium, if any, on) and interest on such Notes when such payments are no longer outstanding pursuant due, (ii) the Company's obligations with respect to the last paragraph of Section 2.such Notes under Article II and
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Notes outstanding Notes, the Guarantees and this Indenture the Collateral Documents on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in (i) and (ii) below, and the Company and the Guarantors shall be deemed to have satisfied all their other obligations under this Indenture, the Guarantees and the Collateral Documents, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, interest and Additional Interest, if any, on such Notes when such payments are due, (ii) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01 and (other than iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Notes.
(c) Upon the Company’s exercise under paragraph (a) of the option applicable to this paragraph (c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Article Five, Section 4.03 (except with respect to the corporate existence of the Company), Section 4.04 Sections 4.04, 4.05 and 4.08, and Sections 4.09 4.10 through 4.19 4.23 with respect to the outstanding Notes on and clause after the date the conditions set forth below are satisfied (3) of the first paragraph of Section 5.01hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company’s exercise under paragraph (clause a) above of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in paragraph (d) being referred below, Sections 6.01(3) through 6.01(10) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company shall have irrevocably deposited in trust with the Trustee, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof, in such amounts as are sufficient, in the opinion of a nationally-recognized firm of independent public accountants selected by the Company, to pay the principal of, and premium, if any, interest and Additional Interest, if any, on the outstanding Notes on the stated dates for payment or redemption, as the case may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If be; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company exercises its instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Defeasance option, payment Tender or the proceeds of the Notes may not be accelerated because of an such U.S. Government Obligations to said payments;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under such deposit pursuant to clause (1) of this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an paragraph (except such Default or Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of resulting from the failure to comply with clause Section 4.12 as a result of the borrowing of funds required to effect such deposit) or insofar as Defaults or Events of Default specified in Section 6.01 (6) or (7) are concerned, at any time in the period ending on the 91st day after the date of such deposit;
(3) of the first paragraph of Section 5.01 Such Legal Defeasance or because of any failure to purchase Notes pursuant to Sections 4.09 Covenant Defeasance shall not result in a breach or 4.15 and no failure by the Company violation of, or any Subsidiary to comply with any of the foregoing Sections shall constitute a default hereunder (other than a Default or Event of Default under this Indenture. Upon satisfaction arising in connection with the substantially contemporaneous borrowing of funds to fund the conditions set forth herein and upon request deposit referenced in clause (1) above) or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the CompanyCompany or any of its Subsidiaries is bound;
(i) In the event the Company elects paragraph (b) above, the Company shall deliver to the Trustee shall acknowledge an Opinion of Counsel in writing the discharge United States of those obligations America, to the effect that (A) the Company terminates.
has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance contemplated hereby and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred or (ii) in the event the Company elects paragraph (c) above, the Company shall deliver an Opinion of Counsel in the United States satisfactory to the Trustee, to the effect that Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance contemplated hereby and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(6) the Company shall have delivered to the Trustee an Opinion of Counsel (subject to customary qualifications and exclusions) to the effect that the trust resulting from the deposit is not required to register as an investment company under the Investment Company Act of 1940; and
(7) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) shall become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Samples: Indenture (BRPP LLC)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the Subsidiary Guarantors at any time may terminate outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and after giving effect to interest on such Legal Defeasance, any omission to comply with Notes when such obligations shall no longer constitute a Default or Event of Default or payments are due and (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Sections 4.03 through 4.21 and Article Five with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3), nor shall any event referred to in Section 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), or (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Notes:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the full faith and credit of the United States of America is pledged ("U.S. Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants 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 interest on the outstanding Notes may on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an the TIA;
(3) No Default or Event of Default and (i) shall have occurred or be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), such deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such incurrence) or (ii) shall occur on or before the 91st day after the date of such deposit;
(4) Such deposit will not result in a Default under this Indenture. Upon satisfaction Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that, in the case of clauses (i) and (ii), Holders of the conditions set forth herein Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and upon request of the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The deposit shall not result in the Company, the Trustee shall acknowledge in writing or the discharge trust becoming or being deemed to be an "investment company" under the Investment Company Act of those obligations that the Company terminates.1940;
(c7) Notwithstanding The Holders shall have a perfected security interest under applicable law in the provisions of Sections 8.01(aU.S. Legal Tender or U.S. Government Obligations deposited pursuant to Section 8.01(d)(l) and above;
(b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight 8) The Company shall survive until the Notes have been surrendered delivered to the Trustee for cancellation an Officer's Certificate, in form and are no longer outstanding pursuant substance reasonably satisfactory to the last paragraph Trustee, stating that the deposit under clause (1) was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(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, (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Notes and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Notes is an insider of the Company, after the passage of 90 days following the deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(10) The Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 28.01 have been complied with; provided, however, that no deposit under clause (1) above shall be effective to terminate the obligations of the Company under the Notes, the Security Documents or this Indenture prior to 90 days following any such deposit. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Sheffield Steel Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary any Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means ---------------- that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Company)Sections and matters under this Indenture referred to in (i) and (ii) below, Section 4.04 and Sections 4.09 through 4.19 to have satisfied all its other obligations under such Securities and clause this Indenture insofar as such Securities are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (3i) the rights of the first paragraph Holders of Section 5.01, and the Company may omit outstanding Securities to comply with and shall have no liability receive payments in respect of any termthe principal of, condition or limitation set forth in any premium, if any, and interest on such covenantSecurities when such payments are due, 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred the Company's obligations to as “Covenant Defeasance”)issue temporary Securities, register the transfer or exchange of any Securities, replace mutilated, destroyed, lost or stolen Securities and maintain an office or agency for payments in respect of the Securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's obligations in connection therewith and (iv) the Legal Defeasance provisions of this Indenture. The Company may exercise its Legal Defeasance option under this paragraph (b) notwithstanding its the prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors option under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered below with respect to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Securities.
Appears in 1 contract
Samples: Indenture (Stoneridge Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph clause (b) or clause (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03clause (d).
(b) Subject Upon the Company’s exercise under clause (a) of the option applicable to Sections 8.02(c) and 8.03this clause (b), the Company and the Subsidiary Guarantors at any time may terminate shall, on the date and subject to the satisfaction of the applicable conditions set forth in clause (id) all below, be deemed to have been discharged and terminated from their obligations under (and all then-existing Defaults or Events of Default cured), with respect to the outstanding Notes, the Guarantees and the other Indenture Documents and to have all Liens on the Collateral securing the Notes and this Indenture the Guarantees released and terminated (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of the Sections and matters under this Indenture referred to in clauses (1) and (2) below, and after giving effect the Company and the Guarantors shall be deemed to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) have satisfied all their other obligations under Section 4.03 such Notes and this Indenture, the Guarantees and the other Indenture Documents, except for the following which shall survive until otherwise terminated or discharged hereunder:
(other than 1) the rights of Holders to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due from the defeasance trust referred to below;
(2) the Company’s obligations with respect to the existence Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the Company), Section 4.04 and Sections 4.09 through 4.19 and clause maintenance of an office or agency for payments;
(3) the rights, powers, trusts, duties and immunities of the first paragraph Trustee and the Company’s obligations in connection therewith; and
(4) the Legal Defeasance provisions of this Article VIII. The Company may exercise its option under this clause (b) notwithstanding the prior exercise of its option under clause (c) below with respect to the Notes.
(c) Upon the Company’s exercise under clause (a) of the option applicable to this clause (c), the Company and the Guarantors shall, on the date and subject to the satisfaction of the applicable conditions set forth in clause (d) below, be released and discharged from their obligations under Sections 4.04 through 4.06. Sections 4.08 through 4.26 and Section 5.015.01(a)(2), with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”) and to have all Liens on the Collateral securing the Notes and the Guarantees released and terminated, and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes and Guarantees, the Company and the Guarantors may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (thereby. In addition, upon the Company’s exercise under clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4clause (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein in clause (d) below, Sections 6.01(3) (solely as such section pertains to Sections 4.04 through 4.06, Sections 4.08 through 4.26 and upon request Section 5.01(a)(2)), and Sections 6.01(4), 6.01(5), 6.01(6) (with respect to Significant Subsidiaries only), 6.01(7) (with respect to Significant Subsidiaries only), 6.01(8) and 6.01(9) shall not constitute Events of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesDefault.
(d) The following shall be the conditions to application of either clause (b) or clause (c) above to the outstanding Notes:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders cash in U.S. dollars, non-callable U.S. Government Obligations, or a combination thereof, in such amounts and at such times as are sufficient, in the opinion or based on the report of a nationally recognized firm of independent public accountants, investment bank or appraisal firm to pay the principal of, premium, if any, and interest on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be; provided that, with respect to any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of the Indenture to the extent that an amount is so deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit on the date of redemption (any such amount, the “Applicable Premium Deficit”) only required to be deposited with the Trustee on or prior to the date of redemption;
(2) In the event the Company elects clause (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that:
(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(ii) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based on such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the event the Company elects clause (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit pursuant to Section 8.01(d)(1) (except such Default or Event of Default resulting from the failure to comply with Section 4.08 or Section 4.11 as a result of the borrowing of funds required to effect such deposit and any related deposit of funds);
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under any material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound (other than this Indenture as described in clause (4) above or any agreement or instrument governing any other Indebtedness being defeased or discharged;
(6) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and
(7) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(2) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (x) have become due and are no longer outstanding pursuant payable or (y) shall become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (American Apparel, Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and each Subsidiary Guarantor, if any, shall be deemed to have been released and discharged from its obligations with respect to the Subsidiary Guarantors at any time may terminate outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their of its other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described m paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of, premium, if any, and after giving effect to interest and Additional Interest, if any, on such Legal DefeasanceNotes when such payments are due, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or and (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and each Subsidiary Guarantor, if any, shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.17 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company and its Restricted Subsidiaries, if any, may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3iii) or clause (iv) of the first paragraph Section 6.01, nor shall any event referred to in clauses (v) or (vi) of Section 5.01 and the events specified in such Sections and clauses shall no longer 6.01 thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. 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 ("U.S. Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized investment bank or firm of independent public accountants 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 interest and Additional Interest, if any, on all the outstanding Notes on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Notes;
(2) Such deposit shall not cause the Trustee to have a conflicting interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received an Officers' Certificate stating that no Default or Event of Default shall have occurred and be continuing on the date of such deposit or, insofar as clauses (vii) or (viii) of Section 6.01 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received an Officers' Certificate stating that such deposit will not result in a Default under this Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries, if any, is a party or by which any of them or their property is bound (and in that connection, the Trustee shall have received a certificate from the agent under the Bank Facility to that effect with respect to the Bank Facility then in effect),
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders of the Notes will not recognize income gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to Federal income taxes in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If in the event the Company exercises its Legal Defeasance optionelects paragraph (c) hereof, payment the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of the Notes may will not be accelerated because recognize income, gain or loss for Federal income tax purposes as a result of an Event of Default such deposit and the Note Guarantees defeasance contemplated hereby and all obligations of will be subject to Federal income tax in the Subsidiary Guarantors under this Indenture shall terminate. If same amounts and in the Company exercises its Covenant Defeasance option, payment of same manner and at the Notes may same times as would have been the case if such deposit and defeasance had not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), occurred;
(6)) The Trustee shall have received an Opinion of Counsel stating that 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 of 1940;
(7) (with respect only The Company shall have delivered to Significant Subsidiaries)the Trustee an Officer's Certificate, (8) or (9) or because of failure in form and substance reasonably satisfactory to comply with the Trustee, stating that the deposit under clause (31) was not made by the Company with the intent of preferring the first paragraph Holders over any other creditors of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default Company or Event with the intent of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request defeating, hindering, delaying or defrauding any other creditors of the Company, the Trustee shall acknowledge in writing the discharge any Subsidiary of those obligations that the Company terminates.or others;
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight 8) The Company shall survive until the Notes have been surrendered delivered to the Trustee for cancellation an Opinion of Counsel, in form and are no longer outstanding pursuant substance reasonably satisfactory to the last paragraph Trustee, to the effect that assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Notes is an insider of the Company, (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Notes and (B) after the passage of the 91st day following the deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(9) The Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 28.01 have been complied with; provided, however, that no deposit under clause (1) above shall be effective to terminate the obligations of the Company under the Notes or this Indenture prior to 90 days following any such deposit. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company Issuer may, at its option by Board Resolution Resolutions of the Board of Directors of the CompanyIssuer, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes Securities upon compliance with the conditions set forth in Section 8.038.3.
(b) Subject Upon the Issuer's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.3, be deemed to have been discharged from its obligations with respect to all outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.4 and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the Notes such Securities and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in Section 8.4, and after giving effect to as more fully set forth in such Legal DefeasanceSection, any omission to comply with payments in respect of the Accreted Value of, premium, if any, and interest, if any, on such obligations shall no longer constitute a Default or Event of Default or Securities when such payments are due, (ii) their the Company's obligations with respect to such Securities under Article Two and Section 4.03 4.2, (other than iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article Eight. Subject to compliance with this Article Eight, the Issuer may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Issuer's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.3, be released from its obligations, if any, under the covenants contained in Sections 4.3 and 4.4 and Sections 4.12 through 4.18 and Article Five with respect to the existence of outstanding Securities on and after the Companydate the conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), Section 4.04 and Sections 4.09 through 4.19 the Securities shall thereafter be deemed not "OUTSTANDING" for the purposes of any direction, waiver, consent or declaration or act of Holders (and clause the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "OUTSTANDING" for all other purposes hereunder (3) of it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Securities, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.1(iii), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby. In addition, upon the Issuer's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.3 hereof, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.1(iii), 6.1(iv) and (b), the provisions 6.1(v) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Samples: Indenture (Salt Holdings Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from their obligations (and all Liens on Collateral in connection with the issuance of the Notes) with respect to the outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”), i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and after giving effect to as more fully set forth in such Legal Defeasance, any omission to comply with paragraph payments in respect of the principal of and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due and (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.24 with respect to the outstanding Notes (including any such obligation that required that Collateral be provided by the Company to secure the Notes) on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), and subject to the satisfaction of the conditions set forth in Section 8.03, Sections 6.01(3), 6.01(4), 6.01(5), 6.01(6), 6.01(9) being referred and 6.01(10) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or U.S. Government Obligations or a combination thereof in such amounts and at such times as are sufficient, in the opinion of its Covenant Defeasance option. If a nationally recognized firm of independent public accountants, to pay the principal of and interest on the outstanding Notes to maturity or redemption; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company exercises its instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Defeasance option, payment Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes may not be accelerated because of an to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event such deposit or insofar as Events of Default specified under Sections 6.01(4), from bankruptcy or insolvency events are concerned at any time in the period ending on the 91st day after the date of deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the Incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such Incurrence, and the granting of any Lien securing such Indebtedness);
(3) Such deposit will not result in a Default under this Indenture. Upon satisfaction Indenture or a breach or violation of, or constitute a default under, this Indenture (other than a Default or Event of Default resulting from the Incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such Incurrence, and the granting of any Lien securing such Indebtedness) or any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Notes and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the date of deposit and that no Holder of Notes is an insider of the Company, after the 91st day following the date of deposit, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(7) The Company has delivered to the Trustee shall acknowledge in writing an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the discharge of those obligations that the Company terminates.
(c) defeasance contemplated by this Section 8.01 have been complied with. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) will become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Samples: Indenture (Coinmach Laundry Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from their respective obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal, premium, if any, and after giving effect to interest on such Legal Defeasance, any omission to comply with Notes when such obligations shall no longer constitute a Default or Event of Default or payments are due and (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Subsidiary Guarantors shall be released and discharged from their respective obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.19, 4.26 and 4.27 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company and any Subsidiary Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(c), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in Section 8.03 hereof, Sections 6.01(d), 6.01(e) being referred and 6.01(h) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or U.S. Government Obligations or combination thereof in such amounts and at such times as are sufficient, in the opinion of its Covenant Defeasance option. If a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the outstanding Notes to maturity or redemption; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company exercises its instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Defeasance option, payment Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes may not be accelerated because of an to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event such deposit or insofar as Events of Default specified under Sections 6.01(4)from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such incurrence);
(3) Such deposit and the defeasance contemplated hereby will not result in a Default under, or a breach or violation of, this Indenture or any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or their property or assets is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers' Certificate, stating that the deposit under this Indenture. Upon satisfaction clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the conditions set forth Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that, (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Notes and as otherwise permitted herein and upon request (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, after the Trustee shall acknowledge in writing 91st day following the discharge of those obligations that deposit, the Company terminates.trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(c7) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight The Company shall survive until the Notes have been surrendered delivered to the Trustee for cancellation an Officers' Certificate and are no longer outstanding pursuant an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the last paragraph defeasance contemplated by this Section 8.01 have been complied with; provided, however, that such counsel may rely, as to matters of Section 2fact, on Officers' Certificates of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the Subsidiary Guarantors at any time may terminate other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture insofar as such Notes are concerned (“Legal Defeasance”and the Trustee, at the expense of the Company, shall 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 outstanding Notes to receive solely from the trust fund described in paragraph (d) below and after giving effect to as more fully set forth in such Legal Defeasanceparagraph, any omission to comply with payments in respect of the principal of, premium, if any, and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Section 4.03 (other than Sections 2.06, 2.07 and 4.02 and, with respect to the existence Trustee, under Section 7.08, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Article Eight. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Articles Five and Ten and in Sections 4.07 through 4.16 and Sections 4.18 and 4.19 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(c), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.11 who shall agree to comply with the provisions of this Section 8.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Notes, (x) cash, in United States dollars, in an amount or (y) direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of America for the payment of which guarantee or obligation the full faith and credit of the United States is pledged ("U.S. Government Obligations") maturing as to principal, premium, if any, and interest in such amounts of cash, in United States dollars, and at such times as are sufficient without consideration of any reinvestment of such interest, to pay principal of, premium, if any, and interest on the outstanding Notes not later than one day before the due date of any payment, or (z) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge principal of, premium, if any, and interest on the outstanding Notes (except lost, stolen or destroyed Notes which have been replaced or repaid) on the Final Maturity Date or otherwise in accordance with the terms of this Indenture and of such Notes; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the Note Guarantees and all obligations date of such deposit or, insofar as Section 6.01(a) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest with respect to any securities of the Subsidiary Guarantors under this Indenture Company;
(iv) such legal defeasance or covenant defeasance shall terminate. If the Company exercises its Covenant Defeasance optionnot result in a breach or violation of, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound; (v) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred; (vi) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; (vii) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; provided, however, that if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, no opinion needs to be given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the Trustee's possession prior to such court ruling to the extent not paid to Holders of Notes, the Trustee shall acknowledge will hold, for the benefit of the Holders of Notes, a valid and enforceable security interest in writing such trust funds that is not avoidable in bankruptcy or otherwise, subject only to principles of equitable subordination, (B) the discharge Holders of those obligations that the Company terminates.
(c) Notwithstanding the provisions Notes will be entitled to receive adequate protection of Sections 8.01(a) their interests in such trust funds if such trust funds are used, and (b)C) no property, the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and rights in this Article Eight shall survive until the Notes have been surrendered property or other interests granted to the Trustee or the Holders of Notes in exchange for cancellation and are no longer outstanding pursuant or with respect to any of such funds will be subject to any prior rights of any other person, subject only to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the same effect), but still subject to the last paragraph of Section 2.foregoing clause (B); and
Appears in 1 contract
Samples: Indenture (Telegroup Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company Issuer may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon the Issuer's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and this paragraph (b), the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the Company date the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the Subsidiary Guarantors at any time may terminate (i) entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.04 hereof and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), and after giving effect except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium, if any, on such Legal Defeasance, any omission Notes when such payments are due from the trust referred to comply with such obligations shall no longer constitute a Default or Event of Default or below;
(ii2) their the Issuer's obligations under Sections 2.06, 2.07, 2.08, 2.09 and 4.02;
(3) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer's and any Guarantors' obligations in connection therewith; and
(4) this Article VIII. Subject to compliance with this Article VIII, the Issuer may exercise its option under this Section 4.03 8.02(b) notwithstanding the prior exercise of its option under Section 8.02(c) hereof.
(other than c) Upon the Issuer's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.03 hereof, be released from its obligations under the covenants contained in Sections 4.04, 4.05, 4.07, 4.09 through 4.22 and clauses (3) and (4) of Section 5.01(a) hereof with respect to the existence of outstanding Notes on and after the Companydate the conditions set forth in Section 8.03 are satisfied (hereinafter, "COVENANT DEFEASANCE"), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01 hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Issuer's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.03 hereof, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
clauses (c) Notwithstanding the provisions of Sections 8.01(a3), (5) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph 6) of Section 26.01 hereof shall not constitute Events of Default.
Appears in 1 contract
Samples: Indenture (NTK Holdings, Inc.)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from their respective obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied (i) all their obligations under the Notes and this Indenture (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in (i) and (ii) their below, and to have satisfied all its other obligations under such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal, premium, if any, and interest on such Notes when such payments are due and (ii) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Subsidiary Guarantors shall be released and discharged from their respective obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.19 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company and any Subsidiary Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(c), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company’s exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in Section 8.03 hereof, Sections 6.01(d), 6.01(e) being referred and 6.01(h) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or U.S. Government Obligations or a combination thereof in such amounts and at such times as are sufficient, in the opinion of its Covenant Defeasance option. If a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the outstanding Notes to maturity or redemption; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company exercises its instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Defeasance option, payment Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes may not be accelerated because of an to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event such deposit or insofar as Events of Default specified under Sections 6.01(4)from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such incurrence);
(3) Such deposit and the defeasance contemplated hereby will not result in a Default under, or a breach or violation of, this Indenture or any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or their property or assets is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers’ Certificate, stating that the deposit under this Indenture. Upon satisfaction clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the conditions set forth Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that, (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Notes and as otherwise permitted herein and upon request (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, after the Trustee shall acknowledge in writing 91st day following the discharge of those obligations that deposit, the Company terminates.trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors’ rights generally; and
(c7) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight The Company shall survive until the Notes have been surrendered delivered to the Trustee for cancellation an Officers’ Certificate and are no longer outstanding pursuant an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the last paragraph defeasance contemplated by this Section 8.01 have been complied with; provided, however, that such counsel may rely, as to matters of Section 2fact, on Officers’ Certificates of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities and the Guarantees on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and Guarantees and this Indenture insofar as such Securities and Guarantees are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities and Guarantees when such payments are due, (ii) the Company's obligations with respect to such Securities and Guarantees under Sections 2.05, 2.06, 2.07, 2.08, 4.02, 7.07, 7.08, 8.04 and 8.05, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 4.04 and Sections 4.09 through 4.19 and clause 8.02. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (3b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03, 4.07, 4.09 and 4.11 through 4.21 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal of and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge principal of, premium, if any, and interest on the out- standing Securities on the Maturity Date of such principal or installment of principal or interest in accordance with the terms of this Indenture and of such Securities; PROVIDED, HOWEVER, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries)the Securities shall have occurred and be continuing on the date of such deposit or, (8) or insofar as Sections 6.01(8) and (9) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or because of failure to comply with clause (3) of the first paragraph of Section 5.01 covenant defeasance shall not result in a breach or because of any failure to purchase Notes pursuant to Sections 4.09 violation of, or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(iv) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the date of deposit and that no Holder is an insider of the Company, (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; PROVIDED, HOWEVER, that if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company, no opinion needs to be given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the Trustee's possession prior to such court ruling to the extent not paid to Holders of Securities, the Trustee shall acknowledge will hold, for the benefit of the Holders of Securities, a valid and enforceable security interest in writing such trust funds that is not avoidable in bankruptcy or otherwise, subject only to principles of equitable subordination, (B) the discharge Holders of those obligations that Securities will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used, and (C) no property, rights in property or other interests granted to the Trustee or the Holders of Securities in exchange for or with respect to any of such funds will be subject to any prior rights of any other Person, subject only to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the same effect), but still subject to the foregoing clause (B); and
(vii) the Company terminates.
shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (A) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) Notwithstanding above, as the case may be, have been complied with and (B) if any other Indebtedness of the Company shall then be outstanding, such legal defeasance or covenant defeasance will not violate the provisions of Sections 8.01(a) and (b)the agreements or instruments evidencing such Indebtedness. Notwithstanding the foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 Counsel and 7.08 and in a ruling from the Internal Revenue Service required by clause (iv) above of this Article Eight shall survive until the Notes have been surrendered Section 8.02 need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the Maturity Date within one year or (iii) are no longer outstanding to be called for redemption within one year under arrange- ments satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the last outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any of its Affiliates) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 28.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (d) above which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (Doe Run Peru Sr Ltda)
Legal Defeasance and Covenant Defeasance. (a1) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(2) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b) Subject to Sections 8.02(c) and 8.03), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purpose of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company's obligations with respect to such Securities under Sections 2.6, 2.7 and 4.16, and, with respect to the Trustee, under Section 4.04 7.7, (iii) the rights, powers, trusts, duties and Sections 4.09 through 4.19 immunities of the Trustee hereunder and clause the Company's obligations in connection herewith, and (iv) this Section 8.2 and Section 8.5. Subject to compliance with this Section 8.2, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(3) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article 5 and in Sections 4.5, 4.7 through 4.12, 4.14, 4.15, 4.17 and 4.18 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.1(iv), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause 4) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the outstanding Securities:
(a) the Company exercises its Legal Defeasance optionshall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Section 8.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (x) cash in U.S. dollars or (y) direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of America for the payment of which guarantee or obligation the Notes may full faith and credit of the United States is pledged ("U.S. Government Obligations") maturing as to principal, premium, if any, and interest in such amounts of money and at such times as are sufficient without consideration of any reinvestment of such interest, to pay principal of and interest on the outstanding Securities not later than one day before the due date of any payment, or (z) a combination thereof, in such amounts as will be accelerated because sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge principal of, premium, if any, and interest on the outstanding Securities on the Maturity Date or otherwise in accordance with the terms of this Indenture and of such Securities; provided, -------- however, that the Trustee (or other qualifying trustee) shall have ------- received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities;
(b) no Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the Note Guarantees and all obligations date of such deposit or, insofar as Section 6.1(vii) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(c) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest with respect to any Securities of the Subsidiary Guarantors under this Indenture Company;
(d) such legal defeasance or covenant defeasance shall terminate. If the Company exercises its Covenant Defeasance optionnot result in a breach or violation of, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under under, this Indenture. Upon satisfaction of the conditions set forth herein and upon request of Indenture or any other material agreement or instrument to which the Company, the Guarantor or any Restricted Subsidiary is a party or by which the Company, the Guarantor or any Restricted Subsidiary is bound;
(e) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel, stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the Issue Date, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall acknowledge confirm that, the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and will be subject to Federal income tax on the same amounts, in writing the discharge same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(f) in the case of those obligations an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel, to the effect that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(g) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of senior indebtedness including, without limitation, those arising under this Indenture, after the 91st day following the deposit, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law;
(h) the Company terminatesshall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with; and
(i) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others.
(c5) Notwithstanding All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of Sections 8.01(asuch Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Affiliate of the Company) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (b)d) above or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 8.2 to the contrary notwithstanding, the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight Trustee shall survive until the Notes have been surrendered deliver or pay to the Trustee for cancellation and are no longer outstanding pursuant Company from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (d) above which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the last paragraph Trustee, are in excess of Section 2the amount thereof which would then be required to be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (SFW Holding Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject to Sections 8.02(c) and 8.03, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections 2.02 through 2.11of and matters under this Indenture referred to in (i) and (ii) below, 4.01 through 4.04and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, 4.06at the expense of the Company, 4.08shall execute proper instruments acknowledging the same), 6.07, 7.07 and 7.08 and in this Article Eight except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the Notes have been surrendered rights of Holders of outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities when such payments are due, (ii) the Company's obligations with respect to such Securities under Sections 2.6, 2.7 and 4.2, and, with respect to the Trustee, under Section 7.7, (iii) the rights, powers, trusts, duties and immunities of the Trustee for cancellation hereunder and are no longer outstanding pursuant (iv) this Section 8.2. Subject to compliance with this Section 8.2, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the last paragraph of Section 2Securities.
Appears in 1 contract
Samples: Indenture (Toms Foods Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all outstanding the Outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “Outstanding” only for the purposes of Default or the sections and matters under the Indenture referred to in clauses (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Notes and the Indenture insofar as such Notes are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of Outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (ii) the Company’s obligations to issue temporary Notes, register the transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain an office or agency for payments in respect of the Notes, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith and (iv) the Legal Defeasance provisions of the Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Guarantors shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 403 through 410 with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “Outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 601(3), (5), nor shall any event referred to in Section 601(4) or (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this the Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the Outstanding Notes:
(1) The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If must irrevocably deposit with the Company exercises its Legal Defeasance optionTrustee, payment in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of Independent public accountants selected by 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 interest on all the Outstanding Notes may not be accelerated because of an Event of Default on the dates on which any such payments are due and payable in accordance with the Note Guarantees and all obligations terms of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment and of the Notes may Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officer’s Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Section 601(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officer’s Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction the Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, beneficial owners of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee, confirming that beneficial owners of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an “investment company” under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officer’s Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of preferring the Holders of Notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(9) The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Trustee and stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 1101 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Notes or the Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 6.07 of the Base Indenture. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by paragraph (5) above need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Ninth Supplemental Indenture (Graphic Packaging Holding Co)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the Subsidiary Guarantors at any time may terminate outstanding Securities on the date the conditions set forth below are satisfied (i) all their obligations under the Notes and this Indenture (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Securities and this Indenture insofar as such Securities are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of outstanding Securities to receive payments in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company’s obligations to issue temporary Securities, register the transfer or exchange of any Securities, replace mutilated, destroyed, lost or stolen Securities and maintain an office or agency for payments in respect of the Securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith and (iv) the Legal Defeasance provisions of this Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Securities.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.21 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Securities shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(3), (5), (6), nor shall any event referred to in Section 6.01(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its must irrevocably deposit with the Trustee, in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under United States of America is pledged (“U.S. Government Obligations”) or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and principal and after payment of all federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants, selected by 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 interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment and of the Notes may Securities;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officers’ Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers’ Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of the conditions set forth herein Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, confirming that, Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an “investment company” under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officers’ Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(9) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Securities or this Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 7.07. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered Counsel required by paragraph (5) above need not be delivered if all Securities not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Tenneco Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, terminate its obligations with respect to the outstanding Securities and elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the then outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, except for the following that shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive payment in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (but without being subject to the subordination provisions of this Indenture) (ii) the Company's obligations with respect to such Securities under Sections 2.2, 2.3, 2.6, 2.7, 2.8, 4.1, 4.2 and 4.19, and, with respect to the Trustee, under Sections 7.7 and 7.8, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 8.2 and Sections 8.3, 8.4 and 8.5. Subject to compliance with this Section 8.2, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company shall be released and discharged from its obligations under any covenant contained in Article V and in Sections 8.02(c4.4 through 4.18 (except for obligations mandated by the TIA) with respect to the outstanding Securities on and 8.03after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Securities and each Guarantee, if any, shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”)Guarantor, and after giving effect to such Legal Defeasanceif any, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(46.1(a)(iii) or 6.1(a)(iv), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the holders of the Securities, cash in United States Dollars, 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 is pledged ("U.S. Government Obligations"), or a combination thereof, in such amounts as will be sufficient to pay the principal of and interest on the outstanding Securities to redemption or maturity (except lost, stolen or destroyed Securities that have been replaced or paid);
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders of the Notes may outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance or covenant defeasance and will be accelerated because subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance or covenant defeasance had not occurred (in the case of an Event of Default legal defeasance, such opinion must refer to and the Note Guarantees and all obligations be based upon a ruling of the Subsidiary Guarantors Internal Revenue Service or a change in applicable Federal income tax laws);
(iii) no Default under this Indenture shall terminate. If have occurred and be continuing on the Company exercises its Covenant Defeasance option, payment date of such deposit or at any time during the 90-day period following such date;
(iv) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest under this Indenture or the TIA with respect to any securities of the Notes may Company;
(v) such legal defeasance or covenant defeasance shall not be accelerated because of an Event of Default specified under Sections 6.01(4)result in a breach or violation of, (5)or constitute a default under, (6), (7) (with respect only any agreement or instrument to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by which the Company or any Subsidiary of their Subsidiaries is a party or by which it is bound; and
(vi) the Company shall have delivered to comply the Trustee an Officers' Certificate and an Opinion of Counsel that, taken together, state that all conditions precedent under this Indenture to either legal defeasance or covenant defeasance, as the case may be, have been complied with and that no violations under agreements governing any other outstanding Indebtedness would result therefrom.
(e) All United States Dollars and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the foregoing Sections outstanding Securities shall constitute a Default or Event be held in trust and applied by the Trustee, in accordance with the provisions of Default under such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. Upon satisfaction The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the conditions set forth herein and upon request Holders of the Companyoutstanding Securities. Anything in this Section 8.2 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (cd) Notwithstanding above that, in the provisions opinion of Sections 8.01(a) and (b), the provisions a nationally recognized firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof that would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (Oci N Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Notes and this Indenture insofar as such Notes are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due; (ii) the Company’s obligations to issue temporary Notes, register the transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain an office or agency for payments in respect of the Notes; (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith; and (iv) the Legal Defeasance provisions of this Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence Notes.
(c) Upon the Company’s exercise under paragraph (a) above of the Companyoption applicable to this paragraph (c), Section 4.04 the Company and the Subsidiary Guarantors shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 4.09 4.03 through 4.19 4.18 with respect to the outstanding Notes on and clause after the date the conditions set forth below are satisfied (3) of the first paragraph of Section 5.01hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company and any Subsidiary Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(a)(3), (5), (6), nor shall any event referred to in Section 6.01(a)(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Notes:
(1) The Company may exercise its must irrevocably deposit with the Trustee, in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under United States of America is pledged (“U.S. Government Obligations”) or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and principal and after payment of all federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants, selected by 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 interest on all the outstanding Notes on the dates on which any such payments are due and payable in accordance with the terms of this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment and of the Notes may Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a No Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(a)(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) Such deposit will not result in a Default under this Indenture. Upon satisfaction Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee, confirming that, Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Officers’ Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Subsidiary Guarantor or any Subsidiary of the Company with the intent of preferring the Holders of Notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Subsidiary Guarantor, or any Subsidiary of the Company or others;
(7) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(8) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Notes or this Indenture prior to 90 days following any such deposit; and
(c9) The Company shall have paid all amounts owing to the Trustee pursuant to Section 7.07. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by paragraph (5) above need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Visteon Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph CLAUSE (b) or (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03CLAUSE (d).
(b) Subject Upon the Company's exercise under CLAUSE (a) of the option applicable to Sections 8.02(c) and 8.03this CLAUSE (B), the Company Company, the Parent and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Company), Section 4.04 Sections and Sections 4.09 through 4.19 matters under this Indenture referred to in SUBCLAUSES (i) and clause (3ii) of the first paragraph of Section 5.01below, and the Company may omit Company, the Parent and the Subsidiary Guarantors shall be deemed to comply with have satisfied all their other obligations under this Indenture, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in CLAUSE (d) below and shall have no liability as more fully set forth in such paragraph payments in respect of any termthe principal of, condition or limitation set forth in any and premium, if any, interest and Additional Interest, if any, on such covenantNotes when such payments are due, 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 any omission to comply with such covenants shall no longer constitute a Default or an Event of Default under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred obligations listed in SECTION 8.03, subject to as “Covenant Defeasance”)compliance with this SECTION 8.01 and (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's, the Parent's and the Subsidiary Guarantors' obligations in connection therewith. The Company may exercise its Legal Defeasance option under this CLAUSE (b) notwithstanding its the prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors option under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), CLAUSE (5), (6), (7c) (below with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesNotes.
(c) Notwithstanding Upon the provisions Company's exercise under CLAUSE (a) of Sections 8.01(a) and the option applicable to this CLAUSE (bc), the provisions of Sections 2.02 through 2.11Parent, 4.01 through 4.04the Company and the Parent's Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in ARTICLE FIVE, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.SECTION
Appears in 1 contract
Samples: Indenture (Hines Horticulture Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon the Company's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.04 hereof and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.04 hereof, and after giving effect to as more fully set forth in such Legal DefeasanceSection, any omission to comply with payments in respect of the principal of and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Article Two and Section 4.02 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof. If the Company exercises its Legal Defeasance option, upon satisfaction of the conditions set forth in Section 8.03, payment of the Notes may not be accelerated because of an Event of Default.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.03 hereof, be released from its obligations under Section 4.03 (other than the covenants contained in Sections 4.08, 4.10 through 4.19 and Article Five hereof with respect to the existence of outstanding Notes on and after the Companydate the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), Section 4.04 and Sections 4.09 through 4.19 the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and clause the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (3) of it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Notes, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01(3) hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesthereby.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all outstanding the Outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “Outstanding” only for the purposes of Default or the sections and matters under the Indenture referred to in clauses (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Notes and the Indenture insofar as such Notes are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of Outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (ii) the Company’s obligations to issue temporary Notes, register the transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain an office or agency for payments in respect of the Notes, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith and (iv) the Legal Defeasance provisions of the Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Guarantors shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 403 through 410 with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “Outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 601(3), (5), nor shall any event referred to in Section 601(4) or (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this the Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the Outstanding Notes:
(1) The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If must irrevocably deposit with the Company exercises its Legal Defeasance optionTrustee, payment in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, cash in Euros, Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of Independent public accountants selected by 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 interest on all the Outstanding Notes may not be accelerated because of an Event of Default on the dates on which any such payments are due and payable in accordance with the Note Guarantees and all obligations terms of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment and of the Notes may Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officer’s Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Section 601(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officer’s Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction the Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, beneficial owners of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee, confirming that beneficial owners of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an “investment company” under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officer’s Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of preferring the Holders of Notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(9) The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Trustee and stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 1101 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Notes or the Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 6.07 of the Base Indenture. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by paragraph (5) above need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Eighth Supplemental Indenture (Graphic Packaging Holding Co)
Legal Defeasance and Covenant Defeasance. (a) The Company Issuer may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Issuer’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company Issuer and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Notes outstanding Notes, the Guarantees and this Indenture the Collateral Agreements on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in clauses (i) and (ii) below, and the Issuer and the Guarantors shall be deemed to have satisfied all their other obligations under such Notes and this Indenture, the Guarantees and the Collateral Agreements, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, interest and Additional Interest, if any, on such Notes when such payments are due, (ii) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01 and (other than iii) the rights, powers, trusts, duties and immunities of the Trustee and the Issuer’s obligations in connection therewith. The Issuer may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause Issuer’s exercise under paragraph (3a) of the first option applicable to this paragraph (c), the Issuer and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Sections 4.04 through 4.06, Sections 4.08 through 4.26 (provided that the release and discharge of the Issuer’s obligations under Sections 4.22 and 4.23 shall in no way relieve the Issuer of its obligation to pay any Additional Interest and Additional Amounts when due and payable) and Section 5.015.01(2), with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Company Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes and Guarantees, the Issuer may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Issuer’s exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in paragraph (d) being referred below, Sections 6.01(3) (solely as pertains to Section 4.10 and Section 5.01(2)), 6.01(4), 6.01(5) (solely as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise pertains to Sections 4.04 through 4.06, Sections 4.08 through 4.26 (provided that the release and discharge of the Issuer’s obligations under Section 4.22 and 4.23 shall in no way relieve the Issuer of its Covenant Defeasance option. If obligation to pay any Additional Interest and Additional Amounts when due and payable) and Section 5.01(2)), and Section 6.01(6) through Section 6.01(12) shall not constitute Events of Default; provided however, that in the case of Sections 6.01(8) and 6.01(9), to the extent the events described therein occur within the nine month period following the Issuer’s exercise under paragraph (a) of the option applicable to this paragraph (c), such events will constitute Events of Default.
(d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Issuer or the Company exercises its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance optionTender or non-callable U.S. Government Obligations or a combination thereof, in such amounts and at such times as are sufficient, in the opinion of a internationally recognized firm of independent public accountants, to pay the principal of, and premium, if any, interest and Additional Interest, if any, and Additional Amounts, if any, on the outstanding Notes on the stated dates for payment or redemption, as the case may be; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Issuer instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes may not be accelerated because of an to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), such deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default under this Indenture. Upon satisfaction resulting from the failure to comply with Section 4.08 or Section 4.14 or Section 4.17 arising in connection with the borrowing of funds to fund the conditions set forth herein deposit referenced in clause (1) above and upon request the granting of any Lien securing such borrowing) or insofar as Defaults or Events of Default from bankruptcy or insolvency events are concerned, at any time in the Companyperiod ending on the 91st day after the date of such deposit;
(3) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default hereunder (other than a Default or Event of Default resulting from the failure to comply with Section 4.08 or Section 4.14 or Section 4.17 arising in connection with the borrowing of funds to fund the deposit referenced in clause (1) above and the granting of any Lien securing such borrowing) or any other material agreement or instrument to which the Issuer, the Trustee shall acknowledge in writing Company or any of it Subsidiaries is a party or by which the discharge of those obligations that Issuer, the Company terminates.or any of its Subsidiaries is bound;
(i) In the event the Issuer elects paragraph (b) above, the Issuer or the Company shall deliver to the Trustee an Opinion of Counsel in the United States of America, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Issuer or the Company has received from, or there has been published by, the United States Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders shall not recognize income, gain or loss for United States federal income tax purposes as a result of such Legal Defeasance contemplated hereby and shall be subject to United States federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred or (ii) in the event the Issuer elects paragraph (c) above, the Issuer or the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance contemplated hereby and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(5) The Issuer or the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit under clause (1) was not made by the Issuer or the Company with the intent of preferring the Holders over any other creditors of the Issuer or the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(6) The Issuer or the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) shall become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Issuer or the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Issuer must make arrangements reasonably 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 Issuer.
Appears in 1 contract
Samples: Indenture (Edgen Murray PLC)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph PARAGRAPH (b) or PARAGRAPH (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03PARAGRAPH (d).
(b) Subject Upon the Company's exercise under PARAGRAPH (a) of the option applicable to Sections 8.02(c) and 8.03this PARAGRAPH (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the outstanding Notes, the Guarantees and the Collateral Documents on the date the applicable conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and the Company and the Guarantors shall be deemed to have satisfied all their other obligations under this Indenture, the Guarantees and the Collateral Documents, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in PARAGRAPH (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, interest and Additional Interest, if any, on such Notes when such payments are due, (ii) obligations listed in SECTION 8.03, subject to compliance with this SECTION 8.01 and (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's obligations in connection therewith. The Company may exercise its option under this PARAGRAPH (b) notwithstanding the prior exercise of its option under PARAGRAPH (c) below with respect to the Notes.
(c) Upon the Company's exercise under PARAGRAPH (a) of the option applicable to this PARAGRAPH (c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in ARTICLE FIVE, SECTION 4.03 (except with respect to the corporate existence of the Company), Section SECTIONS 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.014.08, and SECTIONS 4.10 through 4.23 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections SECTION 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under PARAGRAPH (clause a) above of the option applicable to this PARAGRAPH (iic), subject to the satisfaction of the conditions set forth in PARAGRAPH (d) being referred below, SECTIONS 6.01(3) through 6.01(10) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either PARAGRAPH (b) or PARAGRAPH (c) above to the outstanding Notes:
(1) The Company shall have irrevocably deposited in trust with the Trustee, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof, in such amounts as are sufficient, in the opinion of a nationally-recognized firm of independent public accountants selected by the Company, to pay the principal of, and premium, if any, interest and Additional Interest, if any, on the outstanding Notes on the stated dates for payment or redemption, as the case may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If be; PROVIDED, HOWEVER, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company exercises its instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Defeasance option, payment Tender or the proceeds of the Notes may not be accelerated because of an such U.S. Government Obligations to said payments;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), such deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default arising in connection with the substantially contemporaneous borrowing of funds to fund the deposit referenced in clause (1) above and the granting of any Lien securing such borrowing);
(3) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default hereunder (other than a Default or Event of Default arising in connection with the substantially contemporaneous borrowing of funds to fund the deposit referenced in clause (1) above and the granting of any Lien securing such borrowing) or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(4) (i) In the event the Company elects PARAGRAPH (b) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United States of America, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance contemplated hereby and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred or (ii) in the event the Company elects PARAGRAPH (c) above, the Company shall deliver an Opinion of Counsel in the United States satisfactory to the Trustee, to the effect that Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance contemplated hereby and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit under this Indenture. Upon satisfaction CLAUSE (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the conditions set forth herein Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no intervening bankruptcy of the Company between the date of deposit and upon request the 91st day following the date of deposit and that no Holder is an insider of the Company, after the 91st day following the date of deposit, the trust funds shall not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(7) The Company has delivered to the Trustee shall acknowledge in writing an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the discharge of those obligations that the Company terminates.
(c) defeasance contemplated by this SECTION 8.01 have been complied with. - 68 - Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by SECTION 8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and are no longer outstanding pursuant payable or (2) shall become due and payable on the maturity date within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the Subsidiary Guarantors at any time may terminate outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and after giving effect to interest on such Legal Defeasance, any omission to comply with Notes when such obligations shall no longer constitute a Default or Event of Default or payments are due and (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.19 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause a) hereof of the option applicable to this paragraph (c), subject to the satisfaction of the conditions set forth in Section 8.03 hereof, Sections 6.01(3), 6.01(4), 6.01(5) and 6.01(6) shall not constitute Events of Default.
(d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) The Company shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Tender or U.S. Government Obligations or a combination thereof in such amounts and at such times as are sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of and interest on the outstanding Notes to maturity or redemption; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes to maturity or redemption;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event such deposit or insofar as Events of Default specified under Sections 6.01(4)from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the Incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such Incurrence);
(iii) Such deposit will not result in a Default under this Indenture. Upon satisfaction Indenture or a breach or violation of, or constitute a default under, this Indenture or any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(v) The Company shall have delivered to the Trustee an Officer's Certificate, stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(vi) The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that, assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Notes is an insider of the Company, after the Trustee shall acknowledge in writing 91st day following the discharge of those obligations that deposit, the Company terminates.trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(cvii) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered The Company has delivered to the Trustee for cancellation an Officers' Certificate and are no longer outstanding pursuant an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the last paragraph defeasance contemplated by this Section 8.01 have been complied with. In the event all or any portion of Section 2the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Samples: Indenture (Coinmach Laundry Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance ---------------- means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections 8.02(cand matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of and interest on such Securities when such payments are due, and (ii) obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.18 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be deemed to be not ------------------- "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company its Subsidiaries may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(c), nor shall any event -76- referred to in Section 6.01(d) or (5), (6), (7e) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may full faith and credit of the United States of America is pledged ("U.S. ---- Government Obligations") maturing as to principal and interest in such ---------------------- amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants 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 and Additional Interest, if any, and interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Securities;
(2) Such deposit shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received an Officers' Certificate stating that no Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the Note Guarantees and all obligations date of such deposit or, insofar as Section 6.01(f) or (g) is concerned, at any time during the Subsidiary Guarantors period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received an Officers' Certificate stating that such deposit will not result in a Default under this Indenture shall terminate. If or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company exercises or any of its Covenant Defeasance optionSubsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, payment the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that Holders of the Notes may Securities will not recognize income gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be accelerated because subject to Federal income taxes in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of an Event Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders of Default specified under Sections 6.01(4)the Securities will not recognize income, (5), gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6)) The Trustee shall have received an Opinion of Counsel stating that 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 of 1940;
(7) (with respect only The Company shall have delivered to Significant Subsidiaries)the Trustee an Officer's Certificate, (8) or (9) or because of failure in form and substance reasonably satisfactory to comply with the Trustee, stating that the deposit under clause (31) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure was not made by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event Company with the intent of Default under this Indenture. Upon satisfaction preferring the Holders over any other creditors of the conditions set forth herein Company defeating, hindering, delaying or defrauding any other creditors of the Company or any Subsidiary of the Company or others;
(8) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and upon request substance reasonably satisfactory to the Trustee, to the effect that (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Securities and (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Securities is an insider of the Company, after the Trustee shall acknowledge in writing passage of 90 days following the discharge of those obligations that deposit, the Company terminates.trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(c9) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered The Company has delivered to the Trustee for cancellation an Officers' Certificate and are no longer outstanding pursuant an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the last paragraph defeasance contemplated by this Section 8.01 have been complied with; provided, however, that no deposit -------- ------- under clause (1) above shall be effective to terminate the obligations of Section 2the Company under the Securities or this Indenture prior to 90 days following any such deposit. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Leslies Poolmart Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company Issuer may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon the Issuer's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and this paragraph (b), the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the Company date the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the Subsidiary Guarantors at any time may terminate (i) entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.04 hereof and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), and after giving effect except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium, if any, on such Legal Defeasance, any omission Notes when such payments are due from the trust referred to comply with such obligations shall no longer constitute a Default or Event of Default or below;
(ii2) their the Issuer's obligations under Sections 2.06, 2.07, 2.08, 2.09 and 4.02;
(3) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer's and the Guarantors' obligations in connection therewith; and
(4) this Article VIII. Subject to compliance with this Article VIII, the Issuer may exercise its option under this Section 4.03 8.02(b) notwithstanding the prior exercise of its option under Section 8.02(c) hereof.
(other than c) Upon the Issuer's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.03 hereof, be released from its obligations under the covenants contained in Sections 4.04, 4.05, 4.07, 4.09 through 4.22 and clauses (3) and (4) of Section 5.01(a) hereof with respect to the existence of outstanding Notes on and after the Companydate the conditions set forth in Section 8.03 are satisfied (hereinafter, "COVENANT DEFEASANCE"), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01 hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Issuer's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.03 hereof, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
clauses (c) Notwithstanding the provisions of Sections 8.01(a3), (5) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph 6) of Section 26.01 hereof shall not constitute Events of Default.
Appears in 1 contract
Samples: Indenture (Nortek Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all outstanding the Outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the Outstanding Notes and this Indenture on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “Outstanding” only for the purposes of Default or the sections and matters under the Indenture referred to in clauses (i) and (ii) their below, and to have satisfied all its other obligations under Section 4.03 such Notes and the Indenture insofar as such Notes are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (other than i) the rights of the Holders of Outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (ii) the Company’s obligations to issue temporary Notes, register the transfer or exchange of any Notes, replace mutilated, destroyed, lost or stolen Notes and maintain an office or agency for payments in respect of the Notes, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith and (iv) the Legal Defeasance provisions of the Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Guarantors shall be released and discharged from their obligations under any covenant contained in Article V and in Sections 403 through 410 with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “Outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company and any Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 601(3), (5), nor shall any event referred to in Section 601(4) or (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this the Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the Outstanding Notes:
(1) The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If must irrevocably deposit with the Company exercises its Legal Defeasance optionTrustee, payment in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of Independent public accountants selected by 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 interest on all the Outstanding Notes may not be accelerated because of an Event of Default on the dates on which any such payments are due and payable in accordance with the Note Guarantees and all obligations terms of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment and of the Notes may Notes;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officer’s Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Section 601(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officer’s Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction the Indenture or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, beneficial owners of the conditions set forth herein Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and upon request the defeasance contemplated hereby and will be subject to federal income taxes on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably acceptable to the Trustee, confirming that beneficial owners of the Notes will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, stating that as a result of the Legal Defeasance or Covenant Defeasance, neither the Trustee nor the trust have become or are deemed to have become an “investment company” under the Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officer’s Certificate, in form and substance reasonably satisfactory to the Trustee, stating that the deposit under clause (1) was not made by the Company, a Guarantor or any Subsidiary of the Company with the intent of preferring the Holders of Notes over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company, a Guarantor, or any Subsidiary of the Company or others;
(8) 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 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(9) The Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each in form and substance reasonably satisfactory to the Trustee and stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 1101 have been complied with; provided, however, that no deposit under clause (1) above shall acknowledge in writing be effective to terminate the discharge obligations of those obligations that the Company terminates.under the Notes or the Indenture prior to 90 days following any such deposit; and
(c10) The Company shall have paid all amounts owing to the Trustee pursuant to Section 6.07 of the Base Indenture. Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by paragraph (5) above need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (i) have become due and payable, (ii) will become due and payable on the maturity date for the securities within one year, or (iii) are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Seventh Supplemental Indenture (Graphic Packaging Holding Co)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Companyoption, at any time, elect to have either the Legal Defeasance option Section 7.1(b) or the Covenant Defeasance option in paragraph (bc) below be applied to all outstanding Outstanding Notes upon compliance with the conditions set forth in Section 8.037.2.
(b) Subject Upon the Company’s exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 7.2, be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in Section 7.2 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of Section 7.3 hereof and the Subsidiary Guarantors at any time may terminate other Sections of this Indenture referred to in Section 7.1(b)(i) or (i) ii), and to have satisfied all their its other obligations under the such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 7.3 hereof, and as more fully set forth in Section 8.3, payments in respect of the principal of, premium and interest on such Notes when such payments are due,
(ii) the Company’s obligations with respect to such Notes under Article II hereof and Section 4.02 of the Indenture,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith, and
(iv) this Article VII. Subject to compliance with this Article VII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company’s exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the applicable conditions set forth in Section 7.2, be released from its obligations under the covenants contained in Sections 3.1 through 3.10 and Section 4.1(b), (c) and (d) and Sections 4.06 and 4.07 of the Indenture as applicable to the Notes hereof with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Legal Covenant Defeasance”), and after giving effect to such Legal Defeasancethe Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any omission to comply thereof) in connection with such obligations covenants, but shall no longer constitute a Default or Event of Default or continue to be Outstanding for all other purposes hereunder (ii) their obligations under Section 4.03 (other than it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the existence of the Company)Outstanding Notes, Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4Section 6.1, 6.1(4), (5), (6), (7) (with respect only to Significant Subsidiaries), or (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Defaulthereof, but but, except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesthereby.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyDirectors, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.038.3.
(b) Upon the Company’s exercise under paragraph (a) hereof of the option applicable to this paragraph (b), each of the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.3, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.4 hereof and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.4 hereof, and as more fully set forth in such Section, payments in respect of the principal of and interest on such Notes when and to the extent such payments are due, (ii) the Company’s obligations with respect to such Notes under Article II and Section 4.2 hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith, including Section 7.7 hereof and (iv) this Article VIII. Subject to Sections 8.02(ccompliance with this Article VIII, the Company may exercise its option under this paragraph (b) and 8.03notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company’s exercise under paragraph (a) hereof of the option applicable to this paragraph (c), each of Holdings, the Company and the Subsidiary Guarantors at any time may terminate (i) all their shall, subject to the satisfaction of the conditions set forth in Section 8.3 hereof, be released from its obligations under the covenants contained in Sections 4.8 through 4.14 and Sections 4.16 through 4.18 and Article V hereof with respect to the outstanding Notes on and this Indenture after the date the conditions set forth below are satisfied (hereinafter, “Legal Covenant Defeasance”), and after giving effect to such Legal Defeasancethe Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any omission to comply thereof) in connection with such obligations covenants, but shall no longer constitute a Default or Event of Default or continue to be deemed “outstanding” for all other purposes hereunder (ii) their obligations under Section 4.03 (other than it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the existence of the Company)outstanding Notes, Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company and its Subsidiaries may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4)Section 6.1(c) hereof, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company’s exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.3 hereof, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.1(c) and (b), the provisions 6.1(e) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Samples: Indenture (Vertis Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the Subsidiary Guarantors at any time may terminate other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture insofar as such Notes are concerned (“Legal Defeasance”and the Trustee, at the expense of the Company, shall 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 outstanding Notes to receive solely from the trust fund described in paragraph (d) below and after giving effect to as more fully set forth in such Legal Defeasanceparagraph, any omission to comply with payments in respect of the principal of, premium, if any, and interest on such obligations shall no longer constitute a Default or Event of Default or Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Sections 2.3, 2.4, 2.6, 2.7, 2.8 and 4.2, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 4.03 8.2 and Sections 8.3, 8.4 and 8.5. Subject to compliance with this Section 8.2, the Company may exercise its option under this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of (c), the Company shall be released and discharged from its obligations under any covenant contained in Article V and in Sections 4.5 and 4.7 through 4.20 (except for obligations mandated by the TIA) and Section 5.014.23 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.1(a)(iii), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Section 8.2 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Notes, (x) United States dollars in an amount or (y) U.S. Government Obligations maturing as to principal, premium, if any, and interest in such amounts of money and at such times as are sufficient without consideration of any reinvestment of such principal, premium or interest, or (z) a combination thereof, sufficient, in the opinion of a nationally-recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, when due, principal of, premium, if any, on the outstanding Notes on or before the Maturity Date or Redemption Date or otherwise in accordance with the terms of this Indenture and of such Notes; provided, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such United States dollars or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or, insofar as Sections 6.1(a)(vi) and (vii) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a Default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(iv) in the case of an election under this Indenture. Upon satisfaction paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (x) neither the trust nor the Trustee will be required to register as an investment company under the Investment Company Act of 1940, as amended, (y) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (z) since the Issue Date, there has been a change in the applicable United States Federal income tax law, in each case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Notes will not recognize income, gain or loss for United States Federal income tax purposes as a result of such legal defeasance and upon request will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit made by the Company pursuant to its election under paragraph (b) or (c) of this Section 8.2 was not made by the Company with the intent of preferring the Holders over other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(vii) in the case of an election under either paragraph (b) or (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (y) at the end of the sixth month following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; and
(viii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel (to the extent matters of law are involved), each stating that all conditions precedent herein provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with and (y) if any other Indebtedness of the Company shall then be outstanding or committed, such legal defeasance or covenant defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness.
(e) All United States dollars and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the United States dollars or U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Section 8.2 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (cd) Notwithstanding above which, in the provisions opinion of Sections 8.01(a) and (b), the provisions a nationally recognized firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof which would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph clause (b) or clause (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03clause (d).
(b) Subject Upon the Company’s exercise under clause (a) of the option applicable to Sections 8.02(c) and 8.03this clause (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Notes and the Subsidiary Guarantors at any time may terminate Collateral Agreements on the date the applicable conditions set forth below are satisfied (i) all their obligations under the Notes and this Indenture (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in clause (i) and (ii) their below, and the Company shall be deemed to have satisfied all its other obligations under such Notes and this Indenture and the Collateral Agreements, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in clause (d) below and as more fully set forth in such clause, payments in respect of the principal of, and premium, if any, and interest on such Notes when such payments are due, (ii) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01, (other than iii) the Legal Defeasance provisions of this Section 8.01 and (iv) the rights, powers, trusts, duties and immunities of the Trustee and the Collateral Agent and the Company’s obligations in connection therewith. The Company may exercise its option under this clause (b) notwithstanding the prior exercise of its option under clause (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and ’s exercise under clause (3a) of the first paragraph of option applicable to this clause (c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Section 5.014.05 (other than clause (c) thereof), Sections 4.08 through 4.17, Sections 4.19 through 4.22 and Section 5.01(2), with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (thereby. In addition, upon the Company’s exercise under clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and option applicable to this clause (c), subject to the Note Guarantees and all obligations satisfaction of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance optionconditions set forth in clause (d) below, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(46.01(3), (4), (5), (6), (7and Sections 6.01(8) (with respect only to Significant Subsidiaries), (8) or through (9) or because shall not constitute Events of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminatesDefault.
(c) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, with respect to the Notes, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the 77 outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). Notwithstanding anything else in this Section 8.2, such discharge will not occur prior to the end of the six-month period specified in paragraph (d)(iii) below or, if applicable, until the end of the one-year period specified in clause (2) of paragraph (d)(x) below. For this purpose, legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections 8.02(cof and matters under this Indenture referred to in (i) and 8.03(ii) below, and to have satisfied all its other obligations under such Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of, Premium, if any, and interest and Liquidated Damages on such Notes (including Additional Amounts) when such payments are due, (ii) the Company's obligations with respect to such Notes under Sections 2.2, 2.3, 2.6, 2.7, 2.8, 4.2 and 4.16 (for purposes of applying Section 4.16, if the Trustee (or any other qualifying trustee referred to in Section 8.2(d)(i)) is required, by law or by the interpretation or administration thereof, to withhold or deduct any amount for or on account of Taxes from any payment made from the trust fund described in Section 8.2(d)(i) under or with respect to the Notes, such payment shall be deemed to have been made by the Company and the Subsidiary Guarantors at any time may terminate (iCompany shall be deemed to have been so required to withhold or deduct and the amount so deposited with the Trustee by the Company shall include the aggregate amount of all such withholding or deduction required) all their obligations under the Notes and this Indenture (“Legal Defeasance”)and, and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence Trustee, under Sections 7.7 and 7.8, (iii) the rights, powers, trusts, duties and immunities of the Company), Trustee hereunder and (iv) this Section 4.04 8.2 and Sections 4.09 through 4.19 8.3, 8.4 and clause 8.5. Subject to compliance with this Section 8.2, the Company may exercise its option under this paragraph (3b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Notes.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph (c), the Company shall be released and discharged from its obligations under any covenant contained in clause (iii) of Section 5.015.1 and in Sections 4.6 through 4.15 (except for obligations mandated by the TIA) with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(46.1(a)(iii) or 6.1(a)(v), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Section 8.2 applicable to it) and conveyed all right, title and interest to the Trustee for the benefit of the Holders, under the terms of an irrevocable agreement in form and substance 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 to, the benefit of the Holders of such Notes, (x) (1) US Dollars in an amount sufficient or (2) US Government Obligations maturing as to principal, Premium, if any, and interest and Liquidated Damages, if any, in such amounts of money and at such times as are sufficient without consideration of any reinvestment of such principal, Premium or interest or Liquidated Damages, or (3) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge not later than one day before the due date of any such payments, and which shall be applied by the Paying Agents at the direction of Trustee (or other qualifying trustee) to pay and discharge when due, principal of, Premium, if any, and interest and Liquidated Damages and Additional Amounts, if any, on the outstanding Dollar Notes on the Maturity Date, a Redemption Date or otherwise in accordance with the terms of this Indenture and of such Dollar Notes and (y)
(1) Pounds Sterling in an amount sufficient or (2) UK Government Obligations maturing as to principal, Premium, if any, and interest and Liquidated Damages, if any, in such amounts of money and at such times as are sufficient without consideration of any reinvestment of such principal, Premium or interest or Liquidated Damages, or (3) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge not later than one day before the due date of any such payments, and which shall be applied by the Paying Agents, at the direction of the Trustee (or other qualifying trustee) to pay and discharge when due, principal of, Premium, if any, and interest and Liquidated Damages and Additional Amounts, if any, on the outstanding Sterling Notes on the Maturity Date, a Redemption Date or otherwise in accordance with the terms of this Indenture and of such Sterling Notes; provided that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such amounts to said payments with respect to the Notes;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default with respect to the Notes shall have occurred and be continuing on the Note Guarantees and all obligations date of such deposit or at any time during the period ending on the 123rd day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) neither the Company nor any Restricted Subsidiary is an "insolvent person" within the meaning of any Bankruptcy Law on the date of such deposit or at any time during the period ending at the end of the Subsidiary Guarantors under sixth month after the date of such deposit (it being understood that this Indenture condition shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because deemed satisfied until the expiration of an Event of Default specified under Sections 6.01(4such period);
(iv) such legal defeasance or covenant defeasance shall not result in a breach or violation of, (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which it is bound;
(v) in the case of an election under this Indenture. Upon satisfaction paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable United States Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Notes will not recognize income, gain or loss for United States Federal income tax purposes as a result of such deposit and upon request legal defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(vi) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States (which may be based on an Internal Revenue Service ruling) to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred;
(vii) the Company shall have delivered to the Trustee an Opinion of Counsel in the United Kingdom to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for United Kingdom income tax or other tax purposes as a result of such defeasance or covenant defeasance, as applicable, and will be subject to United Kingdom income tax and other tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance, as applicable, had not occurred (this condition may not be waived by any Holder or the Trustee);
(viii) the Company shall have delivered to the Trustee an Officer's Certificate stating that the deposit made by the Company pursuant to its election under paragraph (a) or (b) of this Section 8.2 was not made by the Company with the intent of preferring the Holders over other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others;
(ix) in the case of an election under either paragraph (b) or (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (A) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (B) at the end of the sixth month following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law;
(x) in the case of an election under either paragraph (b) or (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (1) such deposit and legal defeasance or covenant defeasance, as the case may be, shall not cause the Trustee or the trust so created to be subject to the United States Investment Company Act of 1940, as amended, and (2) after the passage of 123 days following the deposit (except, with respect to any trust funds for the account of any Holder who may be deemed to be an "insider" for purposes of the United States Bankruptcy Code, after one year following the deposit), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 00 xx xxx Xxx Xxxx Xxxxxx xxx Xreditor Law in a case commenced by or against the Company under either such statute;
(xi) in the case of an election under either paragraph (b) or (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such deposit, legal or covenant defeasance, as the case may be, and discharge will not cause the Notes to be delisted from any securities exchange on which they are then listed;
(xii) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel (to the extent matters of law are involved), each stating that (x) all conditions precedent herein provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with and (y) if any other Indebtedness of the Company shall then be outstanding or committed, such legal defeasance or covenant defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness.
(e) All US Dollars, Pounds Sterling, US Government Obligations and UK Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, Premium and interest and Liquidated Damages, if any, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the US Government Obligations and/or UK Government Obligations deposited pursuant to paragraph (d) above or the principal, Premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Section 8.2 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money, US Government Obligations and/or UK Government Obligations held by it as provided in paragraph (cd) Notwithstanding above which, in the provisions opinion of Sections 8.01(a) and (b), the provisions a nationally recognized firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof which would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company’s exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under with respect to the outstanding Notes and this Indenture on the date the applicable conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, and after giving effect to such Legal DefeasanceDefeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, any omission which shall thereafter be deemed to comply with such obligations shall no longer constitute a Default or Event be “outstanding” only for the purposes of Default or the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their other obligations under such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, interest and Additional Interest, if any, on such Notes when such payments are due, (ii) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01 and (other than iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause ’s exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Article V, Sections 4.05, 4.06 and 4.08, and Sections 4.10 through 4.20 and 4.22 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections Section 6.01(3) or 6.01(4), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company’s exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in Section 8.03, Sections 6.01(3), 6.01(4), 6.01(5), 6.01(8), 6.01(9) being referred and 6.01(10) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company shall have irrevocably deposited in trust with the Trustee, for the benefit of the Holders and pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof, in such amounts and at such times as are sufficient, in the opinion of a nationally-recognized firm of independent public accountants, to pay the principal of, and premium, if any, interest and Additional Interest, if any, on the outstanding Notes on the stated dates for payment or redemption, as the case may exercise its be; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes to maturity or redemption;
(2) In the event the Company elects paragraph (b) above, the Company shall deliver to the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance option notwithstanding its prior exercise contemplated hereby and shall be subject to federal income tax in the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the event the Company elects paragraph (c) above, the Company shall deliver to the Trustee an Opinion of its Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance option. If contemplated hereby and shall be subject to federal income tax in the Company exercises its Legal same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance option, payment of the Notes may had not be accelerated because of an occurred;
(4) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), such deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the borrowing of funds to fund the deposit referenced in clause (1) above);
(5) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than this Indenture. Upon satisfaction ) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) The Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit under clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the conditions set forth herein and upon request Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the CompanyCompany or others; and
(7) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, which Opinion of Counsel may be subject to customary assumptions and exclusions, each stating that all conditions precedent specified herein relating to the defeasance contemplated by this Section 8.01 have been complied with. Notwithstanding the foregoing, the Trustee shall acknowledge in writing the discharge Opinion of those obligations that the Company terminates.
(cCounsel required by Section 8.01(d)(2) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) shall become due and payable on the maturity date within one year or are no longer outstanding pursuant to be called for redemption within one year under arrangements satisfactory to the last paragraph Trustee for the giving of Section 2notice of redemption by the Trustee in the name, and at the expense, of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 8.03.
(b) Subject Upon the Company's exercise under paragraph (a) hereof of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall, subject to the satisfaction of the conditions set forth in Section 8.03, be deemed to have been discharged from its obligations with respect to all outstanding Notes on the date the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.04 and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture (“Legal Defeasance”and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), and after giving effect Holders of the Notes and any amounts deposited under Section 8.03 shall cease to such Legal Defeasancebe subject to any obligations to, or the rights of, any omission holder of Senior Indebtedness or Guarantor Senior Indebtedness under Article Ten or Eleven, as the case may be, or otherwise, except for the following provisions, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to comply with receive solely from the trust fund described in Section 8.04, and as more fully set forth in such obligations shall no longer constitute a Default or Event Section, payments in respect of Default or the principal of and interest on such Notes when such payments are due, (ii) their the Company's obligations with respect to such Notes under Article Two and Section 4.02, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (iv) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.03, be released from its obligations under Section the covenants contained in Sections 4.03 (other than through 4.08 and 4.10 through 4.20 and Article Five with respect to the existence outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes) and Holders of the Company)Notes and any amounts deposited under Section 8.03 shall cease to be subject to any obligations to, Section 4.04 and Sections 4.09 through 4.19 and clause (3) or the rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness under Article Ten or Eleven or otherwise. For this purpose, such Covenant Defeasance means that, with respect to the first paragraph of Section 5.01outstanding Notes, and the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of or Default under Sections 6.01(4Section 6.01(3), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment hereof of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4paragraph (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Companyin Section 8.03, the Trustee shall acknowledge those events described in writing the discharge of Section 6.01 (except those obligations that the Company terminates.
events described in Section 6.01(1), (c) Notwithstanding the provisions of Sections 8.01(a2), (5) and (b6), the provisions ) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Samples: Indenture (Federal Data Corp /Fa/)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections 8.02(cand matters under this Indenture referred to in (i) and 8.03(ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of the Holders of outstanding Securities to receive payment in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company's obligations to issue temporary Securities, register the transfer or exchange of any Securities, replace mutilated, destroyed, lost or stolen Securities and maintain an office or agency for payments in respect of the Securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee, and (iv) the defeasance provisions of this Indenture. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company shall be released and discharged from its obligations under any covenant contained in Article 5 and in Sections 4.03 through 4.18 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(3), (5), (6nor shall any event referred to in Section 6.01(4), (7) (with respect only to Significant Subsidiaries), or (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may full faith and credit of the United States of America is pledged ("U.S. Government Obligations") maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of independent public accountants 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 interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture and of the Securities;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received Officers' Certificates stating that No Default of Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the Note Guarantees and all obligations date of such deposit or, insofar as Section 6.01(5) or (6) is concerned, at any time during the Subsidiary Guarantors period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers' Certificates stating that such deposit will not result in a Default under this Indenture shall terminate. If or a breach or violation of, or constitute a default under, any other material instrument or agreement to which the Company exercises or any of its Covenant Defeasance optionSubsidiaries is a party or by which it or its property is bound;
(i) In the event the Company elects paragraph (b) hereof, payment the Company shall deliver to the Trustee an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that Holders of the Notes may Securities will not recognize income gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be accelerated because subject to Federal income taxes in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of an Event Counsel, in form and substance reasonably satisfactory to the Trustee, to the effect that, Holders of Default specified under Sections 6.01(4)the Securities will not recognize income, (5), gain or loss for Federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to Federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6)) The deposit shall not result in the Company, the Trustee or the trust becoming or being deemed to be an 89 -82- "investment company" under the Investment Company Act of 1940, as amended;
(7) (with respect only The Company shall have delivered to Significant Subsidiaries)the Trustee an Officers' Certificate, (8) or (9) or because of failure in form and substance reasonably satisfactory to comply with the Trustee, stating that the deposit under clause (31) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure was not made by the Company or any Subsidiary to comply with the intent of defeating, hindering, delaying or defrauding any other creditors of the foregoing Sections Company or any Subsidiary or others;
(8) The Company shall constitute a Default or Event have delivered to the Trustee an Opinion of Default under this Indenture. Upon satisfaction Counsel, in form and substance reasonably satisfactory to the Trustee, to the effect that, (A) the trust funds will not be subject to the rights of holders of Indebtedness of the conditions set forth herein Company or any Guarantor other than the Securities and upon request (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder of Securities is an insider of the Company, after the Trustee shall acknowledge in writing passage of 90 days following the discharge of those obligations that deposit, the Company terminates.trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(c9) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered The Company has delivered to the Trustee for cancellation an Officers' Certificate and are no longer outstanding pursuant an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the last paragraph defeasance contemplated by this Section 8.01 have been complied with; provided, however, that no deposit under clause (1) above shall be effective to terminate the obligations of Section 2the Company under the Securities or this Indenture prior to 90 days following any such deposit. In the event all or any portion of the Securities are to be redeemed through such irrevocable trust, 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.
Appears in 1 contract
Samples: Indenture (Walbro Corp)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate (i) all shall be deemed to have been released and discharged from their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Notes, the Guarantees and the Collateral Agreements on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in clause (i) and (ii) below, and the Company and the Guarantors shall be deemed to have satisfied all their other obligations under such Notes and this Indenture, the Guarantees and the Collateral Agreements, except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph payments in respect of the principal of, and premium, if any, interest and Additional Interest, if any, on, such Notes when such payments are due, (ii) obligations listed in Section 8.03, subject to compliance with this Section 8.01 and (iii) the rights, powers, trust, duties and immunities of the Trustee and the Company's obligations in connection therewith. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Notes.
(c) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company and its Restricted Subsidiaries shall be released and discharged from their obligations under any covenant contained in Sections 4.05 and 4.08, Sections 4.10 through 4.26 (provided that the release and discharge of the Company), 's obligations under Section 4.04 4.26 shall in no way relieve the Company of its obligation to pay any Additional Interest when due and Sections 4.09 through 4.19 payable) and clause (32) of the first paragraph of Section 5.015.01 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes and the Guarantees, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company's exercise under paragraph (a) hereof of the option applicable to this paragraph (c), subject to the satisfaction of the conditions set forth in paragraph (5)d) below, (6), (7Section 6.01(3) (with respect only solely as such Section 6.01(3) pertains to Significant Subsidiaries)Sections 4.05 and 4.08, Sections 4.10 through 4.26 (8) provided that the release and (9discharge of the Company's obligations under Section 4.26 shall in no way relieve the Company of its obligation to pay any Additional Interest when due and payable) and the limitations contained in clause (32) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii5.01), the remainder of this Indenture and the Notes shall be unaffected thereby (clause (ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (56.01(5), (66.01(8), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.01(a6.01(9) and (b), the provisions 6.01(10) shall not constitute Events of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2Default.
Appears in 1 contract
Samples: Indenture (Dune Energy Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth in paragraph (d) below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the Principal of and interest on such Securities when such payments are due, (ii) the Company's obligations with respect to such Securities under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.02, 7.07, 7.08, 8.03, 8.04 and 8.05, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder, and (iv) this Section 4.04 and Sections 4.09 through 4.19 and clause 8.02. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (3b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article V and in Sections 4.11 through 4.19 with respect to the outstanding Securities on and after the date the conditions set forth in paragraph (d) below are satisfied (hereinafter, "covenant defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 who shall agree to comply with the provisions of this Section 8.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) U.S. Legal Tender in an amount, or (B) U.S. Government Obligations which through the scheduled payment of Principal of and interest in respect thereof in accordance with their terms will provide (without giving effect to the reinvestment of any interest thereon), not later than one (1) day before the due date of any payment, U.S. Legal Tender in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge Principal of and interest, on the outstanding Securities on the Maturity Date of such principal or installment of principal or interest in accordance with the terms of this Indenture and of such Securities; provided, however, that the Trustee (or other qualifying trustee) shall have received an irrevocable Company Order instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the Note Guarantees date of such deposit or, in so far as Sections 6.01(xi) and all obligations (xii) are concerned, at any time during the period ending on the 91st day after the date of the Subsidiary Guarantors under such deposit (it being understood that this Indenture condition shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because deemed satisfied until the expiration of an Event of Default specified under Sections 6.01(4such period);
(iii) such legal defeasance or covenant defeasance shall not result in a breach or violation of, (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under, this Indenture or any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them is bound;
(iv) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture. Upon satisfaction , there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(v) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Companyoutstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vi) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of any other Indebtedness of the Company after the 91st day following the deposit, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law;
(vii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (A) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with; and (B) if any other Indebtedness of the Company (including, without limitation, the Senior Indebtedness) shall then be outstanding, such legal defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness; and
(viii) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Securities over other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this paragraph (e), the "Trustee") pursuant to paragraph (d) above in respect of the outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of Principal, and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the Principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 8.02 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (cd) Notwithstanding above which, in the provisions opinion of Sections 8.01(a) and (b), the provisions a nationally recognized firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof which would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the CompanyResolution, at any time, with respect to the Securities, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company shall be deemed to have been released and the Subsidiary Guarantors at any time may terminate (i) all their discharged from its obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "legal defeasance"). For this purpose, such legal defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of paragraph (e) below and the other Sections of and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall 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 outstanding Securities to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company's obligations with respect to such Securities under Sections 2.05, 2.06, 2.07 and 4.02, and, with respect to the Trustee, under Section 4.04 7.08, (iii) the rights, powers, trusts, duties and Sections 4.09 through 4.19 immunities of the Trustee hereunder and clause (3iv) this Article Eight. Subject to compliance with this Section 8.02, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the first option applicable to this paragraph of Section 5.01(c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.07 (except to the extent required to be complied with by the TIA) through 4.19 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"), and the Securities shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such covenant defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(c), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Company shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (x) cash, in United States dollars, (y) direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of America for the payment of which guarantee or obligation the full faith and credit of the United States is pledged ("U.S. Government Obligations") maturing as to principal, premium, if any, and interest in such amounts of cash, in United States dollars, and at such times as are sufficient without consideration of any reinvestment of such interest, to pay the principal of, premium, if any, and interest on the outstanding Securities not later than one day before the due date of any payment, or (z) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge and which shall be applied by the Trustee to pay and discharge the principal of, premium, if any, and interest on the outstanding Securities (except lost, stolen or destroyed Securities which have been replaced or paid) on the Final Maturity Date or on an earlier redemption date in accordance with the terms of this Indenture and of such Securities; provided, however, that the Trustee shall -------- ------- have received an irrevocable written order from the Company instructing the Trustee to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to the Securities; provided, -------- further, that if the Securities are to be redeemed, either notice of such ------- redemption shall have been given or the Company shall have given the Trustee irrevocable directions to give notice of such redemption in the name, and at the expense of the Company, under arrangements satisfactory to the Trustee;
(ii) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise no Default or Event of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment Default or event which with notice or lapse of the Notes may not be accelerated because of time or both would become a Default or an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), the Securities shall have occurred and be continuing on the date of such deposit (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default under relating to the incurrence of Indebtedness to finance such defeasance) or, insofar as Section 6.01(f) or (g) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest with respect to any securities of the Company;
(iv) such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Company is a party or by which it is bound (other than this Indenture. Upon satisfaction );
(v) in the case of an election under paragraph (b) above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the conditions set forth herein outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such legal defeasance and upon request will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred;
(vi) in the case of an election under paragraph (c) above, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred;
(vii) in the case of an election under either paragraph (b) or (c) above, an Opinion of Counsel to the effect that, (x) the trust funds will not be subject to any rights of any other holders of Indebtedness of the Company, and (y) after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable Bankruptcy Law; provided, however, that if a court were to rule under any such law in any -------- ------- case or proceeding that the trust funds remained property of the Company, no opinion needs to be given as to the effect of such laws on the trust funds except the following: (A) assuming such trust funds remained in the Trustee's possession prior to such court ruling to the extent not paid to Holders of Securities, the Trustee will hold, for the benefit of the Holders of Securities, a valid and enforceable security interest in such trust funds that is not avoidable in bankruptcy or otherwise, subject only to principles of equitable subordination, (B) the Holders of Securities will be entitled to receive adequate protection of their interests in such trust funds if such trust funds are used, and (C) no property, rights in property or other interests granted to the Trustee or the Holders of Securities in exchange for or with respect to any of such funds will be subject to any prior rights of any other person, subject only to prior Liens granted under Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any other Bankruptcy Law having the same effect), but still subject to the foregoing clause (B); and
(viii) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that (x) all conditions precedent provided for relating to either the legal defeasance under paragraph (b) above or the covenant defeasance under paragraph (c) above, as the case may be, have been complied with and (y) if any other Indebtedness of the Company shall then be outstanding or committed, such legal defeasance or covenant defeasance will not violate the provisions of the agreements or instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to paragraph (d) above in respect of the outstanding Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Company or any Affiliate of the Company) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of the principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to paragraph (d) above or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities. Anything in this Section 8.02 to the contrary notwithstanding, the Trustee shall acknowledge in writing the discharge of those obligations that deliver or pay to the Company terminates.
from time to time upon the request, in writing, by the Company any money or U.S. Government Obligations held by it as provided in paragraph (cd) Notwithstanding above which, in the provisions opinion of Sections 8.01(a) and (b), the provisions a nationally recognized firm of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and independent public accountants expressed in this Article Eight shall survive until the Notes have been surrendered a written certification thereof delivered to the Trustee for cancellation and Trustee, are no longer outstanding pursuant in excess of the amount thereof which would then be required to the last paragraph of Section 2be deposited to effect an equivalent legal defeasance or covenant defeasance.
Appears in 1 contract
Samples: Indenture (Unifi Communications Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, with respect to the Securities, elect to have either the Legal Defeasance option para- 129 -119- graph (b) or the Covenant Defeasance option in paragraph (bc) below be applied to all the outstanding Notes Securities upon compliance with the conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (b), the Company shall be deemed to have been released and discharged from its obligations with respect to the outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections 8.02(cand matters under this Indenture referred to in (i) and 8.03(ii) below, and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned, except for the following, which shall survive until otherwise terminated or discharged hereunder: (i) the rights of the Holders of outstanding Securities to receive payments in respect of the principal of, premium, if any, and interest on such Securities when such payments are due, (ii) the Company's obligations to issue temporary Securities, register the transfer or exchange of any Securities, replace mutilated, destroyed, lost or stolen Securities and maintain an office or agency for payments in respect of the Securities, (iii) the rights, powers, trusts, duties and immunities of the Trustee and the Company's obligations in connection therewith, (iv) the Legal Defeasance provisions of this Indenture and (v) Article Twelve. The Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option applicable to this paragraph (c), the Company shall be released and discharged from its obligations under any covenant contained in Article Five and in Sections 4.03 through 4.21 with respect to the outstanding Securities on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall there- 130 -120- after be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Securities, the Company and the Subsidiary Guarantors at any time may terminate (i) all their obligations under the Notes and this Indenture (“Legal Defeasance”), and after giving effect to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) their obligations under Section 4.03 (other than with respect to the existence of the Company), Section 4.04 and Sections 4.09 through 4.19 and clause (3) of the first paragraph of Section 5.01, and the Company Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(3), (5), (6), nor shall any event referred to in Section 6.01(4) or (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer thereafter constitute a Default or an Event of DefaultDefault thereunder but, but except as specified above in this clause (ii)above, the remainder of this Indenture and the Notes such Securities shall be unaffected thereby thereby.
(clause d) The following shall be the conditions to application of either paragraph (iib) being referred or paragraph (c) above to as “Covenant Defeasance”). the outstanding Securities:
(1) The Company may exercise its must irrevocably deposit with the Trustee, in trust, for the benefit of the Holder pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of its Covenant Defeasance option. If America for the Company exercises its Legal Defeasance option, payment of which obligation or guarantee the Notes may not be accelerated because of an Event of Default full faith and the Note Guarantees and all obligations credit of the Subsidiary Guarantors under United States of America is pledged ("U.S. Government Obligations") or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient, without consideration of the reinvestment of such interest and principal and after payment of all Federal, state and local taxes or other charges or assessments in respect thereof payable by the Trustee, in the opinion of a nationally recognized firm of Independent public accountants, selected by the Company, expressed in a written cer- 131 -121- tification thereof (in form and substance reasonably satisfactory to the Trustee) delivered to the Trustee, to pay the principal of, premium, if any, and interest on all the outstanding Securities on the dates on which any such payments are due and payable in accordance with the terms of this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment and of the Notes may Securities;
(2) Such deposits shall not be accelerated because cause the Trustee to have a conflicting interest as defined in and for purposes of an Event of Default specified under Sections 6.01(4), (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause the TIA;
(3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and The Trustee shall have received Officers' Certificates stating that no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default or event which with notice or lapse of time or both would become a Default or an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(5) or (6) is concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers' Certificates stating that such deposit will not result in a Default under this Indenture. Upon satisfaction of the conditions set forth herein and upon request of the CompanyIndenture or a breach or violation of, the Trustee shall acknowledge in writing the discharge of those obligations that or constitute a default under, any other material instrument or agreement to which the Company terminates.
(c) Notwithstanding or any of its Subsidiaries is a party or by which the provisions Company or any of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Notes have been surrendered to the Trustee for cancellation and are no longer outstanding pursuant to the last paragraph of Section 2.its Subsidiaries is bound;
Appears in 1 contract
Samples: Indenture (Tenneco Automotive Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph (b) or paragraph (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03paragraph (d).
(b) Subject Upon the Company's exercise under paragraph (a) of the option applicable to Sections 8.02(c) and 8.03this paragraph (b), the Company and the Subsidiary Guarantors at any time may terminate shall be deemed to have been released and discharged from their respective obligations with respect to the outstanding Notes on the date the applicable conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be "outstanding" only for the purposes of the Sections and matters under this Indenture referred to in (i) and (ii) below, and to have satisfied all their its other obligations under the such Notes and this Indenture insofar as such Notes are concerned, except for the following which shall survive until otherwise terminated or discharged hereunder: (“Legal Defeasance”)i) the rights of Holders of outstanding Notes to receive solely from the trust fund described in paragraph (d) below and as more fully set forth in such paragraph, payments in respect of the principal, premium, if any, and after giving effect to interest on such Legal Defeasance, any omission to comply with Notes when such obligations shall no longer constitute a Default or Event of Default or payments are due and (ii) their obligations listed in Section 8.03, subject to compliance with this Section 8.01. The Company may exercise its option under Section 4.03 this paragraph (other than b) notwithstanding the prior exercise of its option under paragraph (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and clause 's exercise under paragraph (3a) of the first option applicable to this paragraph of Section 5.01(c), the Company and the Subsidiary Guarantors shall be released and discharged from their respective obligations under any covenant contained in Article Five, Sections 4.05 and 4.08, and Sections 4.10 through 4.19 with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed to be not "outstanding" for the purpose of any direction, waiver, consent or declaration or act of Holders (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, such Covenant Defeasance means that, with respect to the outstanding Notes, the Company and any Subsidiary Guarantor may omit to comply with and shall have no 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4Section 6.01(c), (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby thereby. In addition, upon the Company's exercise under paragraph (clause a) hereof of the option applicable to this paragraph (iic), subject to the satisfaction of the conditions set forth in Section 8.03 hereof, Sections 6.01(d), 6.01(e) being referred and 6.01(h) shall not constitute Events of Default.
(d) The following shall be the conditions to as “Covenant Defeasance”). application of either paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Company may exercise its shall have irrevocably deposited in trust with the Trustee, pursuant to an irrevocable trust and security agreement in form and substance reasonably satisfactory to the Trustee, U.S. Legal Defeasance option notwithstanding its prior exercise Tender or U.S. Government Obligations or a combination thereof in such amounts and at such times as are sufficient, in the opinion of its Covenant Defeasance option. If a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest on the outstanding Notes to maturity or redemption; PROVIDED, HOWEVER, that the Trustee (or other qualifying trustee) shall have received an irrevocable written order from the Company exercises its instructing the Trustee (or other qualifying trustee) to apply such U.S. Legal Defeasance option, payment Tender or the proceeds of such U.S. Government Obligations to said payments with respect to the Notes may not be accelerated because of an to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be continuing on the Note Guarantees and all obligations date of the Subsidiary Guarantors under this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event such deposit or insofar as Events of Default specified under Sections 6.01(4)from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit (5), (6), (7) (with respect only to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute other than a Default or Event of Default resulting from the incurrence of Indebtedness, all or a portion of which will be used to defease the Notes concurrently with such incurrence);
(3) Such deposit and the defeasance contemplated hereby will not result in a Default under, or a breach or violation of, this Indenture or any other material instrument or agreement to which the Company or any of its Subsidiaries is a party or by which it or their property or assets is bound;
(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ii) in the event the Company elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory to the Trustee, to the effect that Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance contemplated hereby and will be subject to federal income tax in the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(5) The Company shall have delivered to the Trustee an Officers' Certificate, stating that the deposit under this Indenture. Upon satisfaction clause (1) was not made by the Company with the intent of preferring the Holders over any other creditors of the conditions set forth Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(6) The Company shall have delivered to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect that, (A) the trust funds will not be subject to the rights of holders of Indebtedness of the Company other than the Notes and as otherwise permitted herein and upon request (B) assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the deposit and that no Holder is an insider of the Company, after the Trustee shall acknowledge in writing 91st day following the discharge of those obligations that deposit, the Company terminates.trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar law affecting creditors' rights generally; and
(c7) Notwithstanding the provisions of Sections 8.01(a) and (b), the provisions of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight The Company shall survive until the Notes have been surrendered delivered to the Trustee for cancellation an Officers' Certificate and are no longer outstanding pursuant an Opinion of Counsel, each stating that all conditions precedent specified herein relating to the last paragraph defeasance contemplated by this Section 8.01 have been complied with; PROVIDED, HOWEVER, that such counsel may rely, as to matters of Section 2fact, on Officers' Certificates of the Company. In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company must make arrangements reasonably 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.
Appears in 1 contract
Samples: Indenture (Discovery Zone Inc)
Legal Defeasance and Covenant Defeasance. (a) The Company may, at its option by Board Resolution of the Board of Directors of the Company, and at any time, elect to have either the Legal Defeasance option or the Covenant Defeasance option in paragraph clause (b) or (c) below be applied to all the outstanding Notes upon compliance with the applicable conditions set forth in Section 8.03clause (d).
(b) Subject Upon the Company’s exercise under clause (a) of the option applicable to Sections 8.02(cthis clause (b), subject to the satisfaction of the conditions set forth in clause (d) and 8.03below, the Company shall be deemed to have been released and discharged from their obligations with respect to the outstanding Notes and the Subsidiary Guarantors at any time may terminate (i) all their obligations under Collateral Documents on the Notes and this Indenture date the applicable conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of the Sections and matters under this Indenture referred to in subclauses (1) and (2) below, and after giving effect the Company shall be deemed to such Legal Defeasance, any omission to comply with such obligations shall no longer constitute a Default or Event of Default or (ii) have satisfied all their other obligations under such Notes and this Indenture and the Collateral Documents, except for the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of outstanding Notes to receive solely from the trust fund described in clause (d) below and as more fully set forth in such paragraph payments in respect of the principal of and interest on such Notes when such payments are due; (2) obligations listed in Section 4.03 8.03, subject to compliance with this Section 8.01; (other than 3) the rights, powers, trusts, duties and immunities of the Trustee and the Company’s obligations in connection therewith; and (4) this Article 8. The Company may exercise its option under this clause (b) notwithstanding the prior exercise of its option under clause (c) below with respect to the existence of Notes.
(c) Upon the Company), Section 4.04 and Sections 4.09 through 4.19 and ’s exercise under clause (3a) of the first paragraph option applicable to this clause (c), subject to the satisfaction of Section 5.01the conditions set forth in clause (d) below, the Company shall be released and discharged from their obligations under any covenant contained in Sections 4.04, 4.05, 4.07, 4.08, 4.22 through 4.24, 4.26 through 4.29 on and after the date the conditions set forth below are satisfied (“Covenant Defeasance”), and the Notes shall thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the outstanding Notes and the Note Guarantees, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such 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 any such omission to comply with such covenants shall no longer not constitute a Default or an Event of Default under Sections 6.01(4)Section 6.01, (5)but, (6), (7) (with respect only to Significant Subsidiaries), (8) and (9) and the limitations contained in clause (3) of the first paragraph of Section 5.01 and the events specified in such Sections and clauses shall no longer constitute an Event of Default, but except as specified above in this clause (ii)above, the remainder of this Indenture and the such Notes shall be unaffected thereby (thereby. In addition, upon the Company’s exercise under clause (iia) being referred to as “Covenant Defeasance”). The Company may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Company exercises its Legal Defeasance option, payment above of the Notes may not be accelerated because of an Event of Default and the Note Guarantees and all obligations of the Subsidiary Guarantors under option applicable to this Indenture shall terminate. If the Company exercises its Covenant Defeasance option, payment of the Notes may not be accelerated because of an Event of Default specified under Sections 6.01(4clause (c), (5), (6), (7) (with respect only subject to Significant Subsidiaries), (8) or (9) or because of failure to comply with clause (3) of the first paragraph of Section 5.01 or because of any failure to purchase Notes pursuant to Sections 4.09 or 4.15 and no failure by the Company or any Subsidiary to comply with any of the foregoing Sections shall constitute a Default or Event of Default under this Indenture. Upon satisfaction of the conditions set forth herein in clause (d) below, Sections 6.01(e) (solely as such Section 6.01(e) pertains to Sections 4.04, 4.05, 4.07, 4.08, 4.22 through 4.24, 4.26 through 4.29, 6.01(f), 6.01(g), 6.01(h), 6.01(k) and upon request 6.01(l) shall not constitute Events of Default.
(d) The following shall be the conditions to application of either clause (b) or (c) above to the outstanding Notes:
(1) the Company shall have irrevocably deposited with the Trustee, in trust, for the benefit of the Holders, U.S. Legal Tender or non-callable U.S. Government Obligations or a combination thereof, in such amounts and at such times as are sufficient, in the opinion of a nationally-recognized firm of independent public accountants, to pay the principal of and interest on the outstanding Notes on the stated date for payment or redemption, as the case may be;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States of America in form reasonably satisfactory to the Trustee confirming that:
(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(ii) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States of America reasonably acceptable to the Trustee confirming that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit pursuant to subclause (1) above (except such Default or Event of Default resulting from the failure to comply with Section 4.12 or Section 4.20 as a result of the borrowing of funds required to effect such deposit);
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach of, or constitute a default under any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the Company between the date of deposit and the 91st day following the date of deposit and assuming that no Holder is an insider of the Company, after the 91st day following the date of deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally; and
(8) the Company shall have delivered to the Trustee shall acknowledge in writing an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the discharge of those obligations that Legal Defeasance or the Company terminatesCovenant Defeasance have been complied with.
(ce) Notwithstanding the provisions of Sections 8.01(a) and (b)foregoing, the provisions Opinion of Sections 2.02 through 2.11, 4.01 through 4.04, 4.06, 4.08, 6.07, 7.07 and 7.08 and in this Article Eight shall survive until the Counsel required by Section 8.01(d)(2) above with respect to a Legal Defeasance need not be delivered if all Notes have been surrendered not theretofore delivered to the Trustee for cancellation (A) have become due and are no longer outstanding pursuant payable or (B) shall become due and payable on the Maturity Date within one (1) year under arrangements satisfactory to the last paragraph Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
(f) In the event all or any portion of the Notes are to be redeemed through such irrevocable trust, the Company shall make arrangements reasonably 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.
(g) Upon a Legal Defeasance or Covenant Defeasance, any security for the Notes (other than the trust fund described in Section 28.05) will be released as provided under Section 10.05.
Appears in 1 contract
Samples: Indenture (Mig, Inc.)
