Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied: (a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be; (b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound; (c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit; (d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and (e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.
Appears in 3 contracts
Sources: Subordinated Indenture (Credit Suisse Group), Senior Guaranteed Indenture (Credit Suisse Group), Subordinated Indenture (Credit Suisse Group)
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and the Company and the Guarantor will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Covenant Defeasance”);
(a) the Company or Issuer shall have irrevocably pledged to the Guarantor has irrevocably deposited in trust with the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government obligations acceptable by the Securities of Bond Trustee (the “Defeasance Pledge”) in such series, amounts as will be sufficient for the payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Outstanding Bonds to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beMaturity Date;
(b) such deposit will not result in the Issuer shall, if required by the Bond Trustee, provide a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect legal opinion reasonably acceptable to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Bond Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series Bondholders will not recognize income, gain or loss for federal income tax purposes (under US federal or Norwegian tax law, if applicable) as a result of such discharge under this Section 9.02 the Defeasance Pledge and Covenant Defeasance, and will be subject to federal such income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance the Defeasance Pledge had not occurred;
(c) no Event of Default shall have occurred and be continuing on the date of establishment of the Defeasance Pledge, or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 181st day after the date of establishment of the Defeasance Pledge;
(yd) an Opinion neither the Defeasance Pledge nor the Covenant Defeasance results in a breach or violation of Counsel to any material agreement or instrument binding upon the same effect as Issuer, or the ruling described in clause (x) above; andcertificate of association or partnership agreement governing the Issuer;
(e) the Company has Issuer shall have delivered to the Bond Trustee an Officers’ Certificate a certificate signed by the Chief Financial Officer of the GP that the Defeasance Pledge was not made by the Issuer with the intent of preferring the Bondholders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(f) the Issuer shall have delivered to the Bond Trustee any certificate or legal opinion reasonably required regarding the Covenant Defeasance or Defeasance Pledge (including certificate from the Chief Financial Officer of the GP and an Opinion of Counsel, in each case stating a legal opinion from its legal counsel to the effect that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series Covenant Defeasance have been complied with. The obligations ; and that (i) the Defeasance Pledge will not be subject to any rights of creditors of the Company Issuer, (ii) the Defeasance Pledge will constitute a valid, perfected and enforceable security interest in favour of the Bond Trustee for the benefit of the Bondholders, and (iii) after the 181st day following the establishment of the Defeasance Pledge, the funds and assets so pledged will not be subject to the effects of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally under the laws of the jurisdiction where the Defeasance Pledge was established and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations corporate domicile of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveIssuer.
Appears in 3 contracts
Sources: Bond Agreement (Teekay Offshore Partners L.P.), Bond Agreement (Teekay Offshore Partners L.P.), Bond Agreement (Teekay Offshore Partners L.P.)
Defeasance. Except as provided belowAt the Issuers' option, either (a) the Company will Issuers shall be deemed to have paid and the Company and the Guarantor will be discharged been Discharged (as defined below) from any and all their respective obligations in respect of under the Securities of on the 91st day after the applicable conditions set forth below have been satisfied or (b) the Issuers shall cease to be under any series obligation to comply with any term, provision or condition set forth in Sections 3.9 through 3.18, 8.1 and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect 8.2 with respect to the Securities of such series and at any time after the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following applicable conditions shall set forth below have been satisfied:
: (a1) the Company Issuers shall have deposited or the Guarantor has caused to be deposited irrevocably deposited in trust with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely for to, the benefit of the Holders of the Securities (i) funds in an amount sufficient to pay (A) the principal amount of the Securities in full on the date of maturity of the Securities or a selected date of redemption of the Securities as permitted under this Indenture (if such seriesSecurities are to be called for redemption and satisfactory arrangements have been made with the Trustee for the giving of notice of redemption) and (B) the interest on such aggregate principal amount to the date of maturity of the Securities or such date of redemption, taking into account all intervening interest payment dates, for payment of the Principal of and period from the date through which interest on the Securities has been paid to the date of maturity of the Securities or such date of redemption and all other sums payable hereunder by the Issuers; provided that such funds, if invested, shall be invested only in U.S. Government obligations maturing prior to the date of maturity of the Securities or, to the extent applicable, such date of redemption and such intervening interest payment dates; and, provided further, however, that the Trustee shall have no obligation to invest such funds; or (ii) U.S. Government obligations in such aggregate principal amount and maturity on such dates as will, together with the income or increment to accrue thereon, but without consideration of any reinvestment of such seriesincome or increment, money be sufficient to pay when due (including any intervening interest payment dates) the amounts set forth in the foregoing clauses (A) and (B); or U.S. Government Obligations or (iii) a combination thereof of (i) and (ii) sufficient (unless such funds consist solely in the cases of moneydeposits made pursuant to (ii) or (iii)), in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal each installment of principal of, and accrued interest on on, the outstanding Securities on the dates such installments of such series to maturity principal or earlier redemption interest are due; (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c2) no Event of Default or event which with notice or lapse of time would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
; (d3) the Company Issuers shall have delivered to the Trustee either (xA) a ruling directed to the Trustee received from the Internal Revenue Service an Opinion of Counsel to the effect that the deposit of such funds or investments or both to defease the Issuers' obligations in respect of the Securities is in accordance with the provisions of this Indenture and (B) either (i) an Opinion of Counsel to the effect that Holders of the Securities of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such discharge the exercise of the option under this Section 9.02 9.5 and will be subject to United States federal income tax on the same amount and in the same manner and at the same times time as would have been the case if such deposit and defeasance option had not occurred been exercised, or (yii) an Opinion of Counsel a private letter ruling to the same that effect as the ruling described in clause (x) above; and
(e) the Company has delivered directed to the Trustee an Officers’ Certificate received from the United States Internal Revenue Service; and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to (4) the defeasance contemplated by this Section 9.02 of the Securities deposit of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof funds or investments shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivenot contravene applicable law.
Appears in 3 contracts
Sources: Indenture (Advantica Restaurant Group Inc), Indenture (Dennys Holdings Inc), Indenture (Dennys Holdings Inc)
Defeasance. Except as provided below, the Company will Borrower shall not be deemed permitted at any time to have paid and the Company and the Guarantor will be discharged from defease all or any and all obligations in respect portion of the Securities Loan except as expressly provided in this Section 2.10. Provided that no Event of any series Default has occurred and is continuing, after the Guarantee thereofdate which is two (2) years after the Start-Up Day of the last Note securitized, and Borrower may voluntarily defease all of the provisions Loan (a "Full Defeasance") or a portion of this Indenture will no longer be the Loan (a "Partial Defeasance"), in effect with respect either case, subject to the Securities satisfaction of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedprecedent:
(a) the Company Any Full Defeasance or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit Partial Defeasance of the Holders of the Securities of such series, for payment of the Principal of and interest Loan by Borrower shall be made on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;Payment Date,
(b) such deposit will Borrower shall provide not result in less than fifteen (15) days prior written notice to Lender specifying (i) a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to Payment Date (the "Defeasance Release Date") on which the Company Full Defeasance or Partial Defeasance is to occur, and (ii) in the Guarantorevent of a Partial Defeasance, as the case may beIndividual Property proposed to be defeased; provided, that, Borrower shall be required to defease the Loan on the Defeasance Release Date specified in such notice unless such notice is a party or revoked in writing by Borrower prior to the such Defeasance Release Date in which it is bound;event Borrower shall immediately reimburse Lender for any reasonable costs incurred by Lender in connection with Borrower's giving of such notice and revocation,
(c) no Default Borrower shall have paid to Lender all principal and interest accrued and unpaid on the Principal Indebtedness to and including the Defeasance Release Date,
(d) Borrower shall pay to Lender all reasonable out-of-pocket fees and expenses associated with the Full Defeasance or Partial Defeasance, as applicable (including, without limitation, fees of Rating Agencies and accountants, and fees incurred in connection with the delivery of opinion letters related to such Full Defeasance or Partial Defeasance, as applicable), reasonable fees and out-of-pocket costs of any loan servicer (if any) in connection with the Full Defeasance or Partial Defeasance, as applicable, and all other sums then due and payable under the Loan Documents,
(e) Borrower shall either deposit with Lender an amount equal to the Defeasance Deposit, or, at Lender's request, deliver to Lender the Defeasance Collateral. In connection with the foregoing, Borrower appoints Lender as Borrower's agent for the purpose of applying the Defeasance Deposit to purchase the Defeasance Collateral,
(f) Borrower shall execute and deliver to Lender all documents reasonably required by Lender (i) in the case of a Full Defeasance, to amend and restate the Note in a principal amount equal to the then outstanding principal balance of the Loan (the "Full Defeased Note"), and (ii) in the case of a Partial Defeasance, to issue two substitute notes as
(A) one promissory note in a principal amount equal to, (1) with respect to the Securities Partial Defeasance of such series Individual Properties representing, in the aggregate, the first 25% (based upon applicable Allocated Loan Amounts) to be defeased hereunder during the term of the Loan, 100% of the Allocated Loan Amount of the Individual Property to be defeased, and (2) otherwise, 125% of the Allocated Loan Amount of the Individual Property to be defeased (the "Defeased Note"); and (B) the other promissory note having a principal balance equal to the Allocated Loan Amounts of all Individual Properties (including the Individual Property being defeased) less the amount of the Defeased Note (the "Undefeased Note"). The Defeased Note and the Undefeased Note shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered terms identical to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders terms of the Securities Note, except for the principal balance and a pro rata allocation of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.the
Appears in 3 contracts
Sources: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Defeasance. Except Any provision hereof to the contrary notwithstanding, at any time during the Defeasance Period (as provided defined below), the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect Borrower may obtain a release of the Securities of any series and Mortgaged Property from the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense lien of the Company and Security Instruments only upon the Guarantor, shall execute proper instruments acknowledging the same); provided that satisfaction of the following conditions shall have been satisfiedconditions:
(ai) not less than thirty (30) days prior written notice shall be given to Lender specifying a date (the Company or “Defeasance Date”) on which the Guarantor has irrevocably deposited in trust with Defeasance Collateral (as defined below) is to be delivered, such date being the Trustee as trust funds solely for the benefit first day of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bemonth;
(bii) all accrued and unpaid interest and all other sums due under this Note, the Security Instruments and the Other Security Documents up to the Defeasance Date, including, without limitation, all reasonable costs and expenses incurred by Lender or its agents in connection with such deposit will not result defeasance, including, without limitation, any legal fees and expenses incurred in connection with obtaining and reviewing the Defeasance Collateral, the preparation of the Defeasance Security Agreement (as defined below) and related documentation, accountant fees, and investment advisor fees, all of which shall be paid in full on or prior to the Defeasance Date;
(iii) no Event of Default, and no event or condition that, with the giving of notice or passage of time or both, would constitute an Event of Default, shall exist either at the time Borrower gives notice of the Defeasance Date to Lender or on the Defeasance Date;
(iv) Borrower shall deliver to Lender on or before the Defeasance Date direct, non-callable obligations of the United States of America in such form and amount that provide for the payments prior, but as close as possible, to all successive regularly scheduled monthly payment dates, including the Maturity Date, with such payments being equal to or greater than the amount of the corresponding monthly payment required to be paid under this Note (hereafter, “Scheduled Defeasance Payments”) for the balance of the term hereof and the amount required to be paid on the Maturity Date (such obligations are collectively and singularly referred to herein as “Defeasance Collateral”) each of which shall be duly endorsed by the holder thereof as directed by Lender or accompanied by a breach or violation ofwritten instrument of transfer in form and substance wholly satisfactory to Lender (including, or constitute a default underwithout limitation, this Indenture or any other material agreement or such instrument to which as may be required by the Company depository institution holding such securities or the Guarantorissuer thereof, as the case may be, is to effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect a party first priority security interest in such Defeasance Collateral in favor of Lender. The Defeasance Collateral may be purchased by Lender on Borrower’s behalf, in which case Borrower shall deposit with Lender at least three days before the Defeasance Date a sum sufficient, in Lender’s sole and absolute discretion, to purchase the Defeasance Collateral. Any sums in excess of the amount necessary to purchase the Defeasance Collateral shall be remitted to Borrower upon release of the Mortgaged Property.
(v) Borrower shall deliver the following to Lender, at Borrower’s cost, on or by which it is boundprior to the Defeasance Date:
(A) a pledge and security agreement, in form and substance satisfactory to Lender in its sole discretion, creating a first priority security interest in favor of Lender in the Defeasance Collateral (the “Defeasance Security Agreement”);
(cB) no Default with respect to a certificate of Borrower certifying that all of the Securities of such series shall requirements hereunder for a defeasance have occurred and be continuing on the date of such depositbeen satisfied;
(dC) the Company shall have an opinion of counsel for Borrower in form and substance and delivered by counsel satisfactory to the Trustee either Lender in its sole discretion stating, among other things, (x) that Lender has a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and perfected first priority security interest in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or Defeasance Collateral, (y) an Opinion of Counsel to that the same effect as the ruling described Defeasance Security Agreement is enforceable against Borrower in clause accordance with its terms and (xz) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by will not cause the entity which holds this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, Note to fail to qualify as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.a “real estate mortgage investment conduit” (a
Appears in 2 contracts
Sources: Promissory Note (Sovran Self Storage Inc), Promissory Note (Sovran Acquisition LTD Partnership)
Defeasance. Except as provided belowIf the Pollution Control Corporation shall pay or cause to be paid to the Owner of any Bond secured hereby the principal of and premium, if any, and interest due and payable, and thereafter to become due and payable, upon such Bond or any portion of such Bond in the principal amount of $5,000 or any integral multiple thereof, such Bond or portion thereof shall cease to be entitled to any lien, benefit or security under this Indenture. If the Pollution Control Corporation shall pay or cause to be paid to the Owners of all the Bonds secured hereby the principal of and premium, if any, and interest due and payable, and thereafter to become due and payable, thereon, and shall pay or cause to be paid all other sums payable hereunder including, without limitation, amounts payable pursuant to Section 10.04 hereof, then, and in that case, the right, title and interest of the Trustee in and to the Trust Estate shall thereupon cease, terminate and become void. In such event, the Trustee shall assign, transfer and turn over to the Company will the Trust Estate, including, without limitation, any surplus in the Bond Fund and any balance remaining in any other fund created under this Indenture. All or any portion of Outstanding Bonds or portions of Bonds in principal amounts of $5,000 or any integral multiple thereof, shall prior to the maturity or redemption date thereof be deemed to have been paid within the meaning and with the Company and the Guarantor will be discharged from any and all obligations effect expressed in respect of the Securities of any series and the Guarantee thereofthis Article VIII, and the provisions entire indebtedness of this Indenture will no longer be in effect the Pollution Control Corporation with respect to the Securities of such series thereof shall be satisfied and the Guarantee thereof (and the Trusteedischarged, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:when
(a) in the event said Bonds or portions thereof have been selected for redemption in accordance with Section 3.02 hereof, the Trustee shall have given, or the Company shall have given to the Trustee in form satisfactory to it irrevocable instructions to give, on a date in accordance with the provisions of Section 3.03 hereof, notice of redemption of such Bonds or the Guarantor has irrevocably portions thereof,
(b) there shall have been deposited in trust with the Trustee as trust funds solely for either moneys in an amount which shall be sufficient, or Government Obligations which shall not contain provisions permitting the benefit redemption thereof at the option of the Holders of issuer, the Securities of such series, for payment of the Principal principal of and the interest on the Securities of such serieswhich, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneywhen due, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered and without regard to the Trustee) without consideration of any reinvestment and after payment of all federalthereof, state and local taxes will provide moneys which, together with the moneys, if any, deposited with or other charges and assessments in respect thereof payable held by the Trustee, shall be sufficient, to pay and discharge when due the Principal principal of and accrued premium, if any, and interest due and to become due on the outstanding Securities of such series to maturity said Bonds or earlier redemption (irrevocably provided for under arrangements satisfactory portions thereof on and prior to the Trustee), as the case may be;
(b) such deposit will not result in a breach redemption date or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantormaturity date thereof, as the case may be, is a party or by which it is bound;and
(c) no Default with respect in the event said Bonds or portions thereof do not mature and are not to be redeemed within the Securities of such series shall have occurred and be continuing on the date of such deposit;
next succeeding sixty (d60) days, the Company shall have delivered to given the Trustee either (x) a ruling directed in form satisfactory to the Trustee received from the Internal Revenue Service it irrevocable instructions to the effect that the Holders of the Securities of such series will not recognize incomegive, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and soon as practicable in the same manner as a notice of redemption is given pursuant to Section 3.03 hereof, a notice to the Owners of said Bonds or portions thereof that the deposit required by clause (b) above has been made with the Trustee and at the same times as would that said Bonds or portions thereof are deemed to have been paid in accordance with this Article VIII and stating the case maturity or redemption date upon which moneys are to be available for the payment of the principal of and premium, if any, and interest on said Bonds or portions thereof. Neither the Government Obligations nor moneys deposited with the Trustee pursuant to this Article VIII nor principal or interest payments on any such deposit Government Obligations shall be withdrawn or used for any purpose other than, and defeasance had such Government Obligations, moneys and principal or interest payments shall be held in trust for, the payment of the principal of and premium, if any, and interest on said Bonds or portions thereof; provided, that any cash received from such principal or interest payments on such Government Obligations deposited with the Trustee, if not occurred or (y) an Opinion of Counsel then needed for such purposes, shall, to the same effect as extent practicable, be invested in Government Obligations of the ruling type described in clause (xb) above; and
(e) of the Company has delivered preceding paragraph maturing at times and in amounts sufficient to pay when due the principal of and premium, if any, and interest to become due on said Bonds or portions thereof on and prior to such redemption date or maturity date thereof, as the case may be, and interest earned from such reinvestments shall be paid over to the Company, as received by the Trustee, free and clear of any trust, lien or pledge hereunder. If payment of less than all the Bonds is to be provided for in the manner and with the effect provided in this Article VIII, the Trustee shall select such Bonds or portions of Bonds in the manner specified by Section 3.02 hereof for selection for redemption of less than all Bonds in the principal amount designated to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating by the Company. At or prior to the defeasance contemplated by time of the deposit of any Government Obligations with the Trustee pursuant to this Section 9.02 8.01, the Company shall provide the Trustee with a certificate of an accountant or an accounting firm as to the sufficiency of such Government Obligations to pay when due the principal of and premium, if any, and interest due and to become due as set forth in clause (b) of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivepreceding paragraph.
Appears in 2 contracts
Sources: Indenture of Trust (Tucson Electric Power Co), Indenture of Trust (Tucson Electric Power Co)
Defeasance. Except as provided below(a) Provided no Event of Default shall have occurred and remain uncured, following the Defeasance Lockout Release Date and prior to the Open Period Start Date (i) Borrower shall have the right to voluntarily defease the entire Loan and obtain a release of the lien of the Security Instrument by providing Lender with the Total Defeasance Collateral (hereinafter, a “Total Defeasance Event”) or (ii) Borrower shall have the right to defease a portion of the Loan subject to, and in accordance with, this Section 2.8 and Section 2.9 hereof (hereinafter, a “Partial Defeasance Event”), in each case, subject to the satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days’ notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days’ notice specifying (A) a date (the “Defeasance Date”) on which the Defeasance Event is to occur and (B) the principal amount of the Loan to be defeased (which shall be in the amount of the Release Amount in connection of a Partial Defeasance Event);
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due and payable on the Loan to and including the Defeasance Date; (B) all other sums, if any, then due and payable under the Note, this Agreement, the Company will be deemed to have paid Security Instrument and the Company other Loan Documents through and including the Defeasance Date; (C) all escrow, closing, recording, legal, appraisal, Rating Agency and other actual, reasonable fees, costs and expenses paid or incurred by Lender or its agents in connection with the Defeasance Event, the release of the lien of Security Instrument on the Property in connection with a Total Defeasance Event (or the Release Property in connection with a Partial Defeasance Event), the review of the proposed Defeasance Collateral and the Guarantor will preparation of the Security Agreement and related documentation; and (D) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note and/or the Defeasance Event;
(iii) In the case of a Partial Defeasance Event, Lender, at Borrower’s expense, shall prepare all necessary documents to sever the indebtedness evidenced by the Note into two substitute notes, one (the “Defeased Note”) having a principal balance equal to the defeased portion of the original Note, which Defeased Note shall be discharged from in an amount exactly equal to the Release Amount, and the other (the “Undefeased Note”) having a principal balance equal to the undefeased portion of the original Note as of the Defeasance Date. The Defeased Note and the Undefeased Note shall have identical terms as the original Note, except for the principal balance, and provided that the Monthly Debt Service Payment Amount shall be apportioned ratably amongst the Defeased Note and the Undefeased Note, and the Defeased Note or Defeased Notes and the Undefeased Note or Undefeased Notes shall be cross-defaulted with each other. A Defeased Note cannot be the subject of any further Defeasance Event. An Undefeased Note may be the subject of a further Defeasance Event in accordance with the terms of this Section 2.8;
(iv) Borrower shall deposit the Defeasance Collateral into the Defeasance Collateral Account and all obligations otherwise comply with the provisions of Section 2.8(d) hereof;
(v) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Securities of any series Defeasance Collateral Account and the Guarantee thereofDefeasance Collateral;
(vi) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (A) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the provisions Total Defeasance Collateral; (B) if a Securitization has occurred (1) the REMIC Trust formed pursuant to such Securitization and/or any subsequent or prior Securitization of the Loan or any portion thereof or interest therein will each not fail to maintain their respective status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code as a result of a Total Defeasance Event pursuant to this Indenture will no longer Section 2.8 and (2) the Total Defeasance Event would neither (I) constitute a “significant modification” of the Loan within the meaning of Treasury Regulation Section 1.860G02(b)(2) nor (II) cause the Loan to fail to be in effect a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the IRS Code; and (C) a New Non-Consolidation Opinion with respect to the Securities of such series and Successor Borrower;
(vii) Borrower shall deliver to Lender a Rating Agency Confirmation as to the Guarantee thereof Defeasance Event;
(and the Trustee, at the expense of the Company and the Guarantor, viii) Borrower shall execute proper instruments acknowledging the same); provided deliver an Officer’s Certificate certifying that the following conditions shall requirements set forth in this Section 2.8 have been satisfied:;
(aix) Borrower shall deliver a certificate of a “big four” or other public accounting firm reasonably acceptable to Lender certifying that the Company Defeasance Collateral will generate monthly amounts equal to or greater than the Guarantor has irrevocably deposited Scheduled Defeasance Payments (or with respect to a Partial Defeasance Event, the Partial Defeasance Scheduled Defeasance Payments);
(x) Borrower shall deliver such other customary certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all actual, reasonable costs and expenses of Lender incurred in trust connection with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money Total Defeasance Event or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)Partial Defeasance Event, as the case may be;applicable, including, without limitation, Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses.
(b) such deposit will not result in a breach or violation ofIf Borrower has elected to defease the entire Note and the requirements of this Section 2.8 have been satisfied, or constitute a default underthe Property shall be released from the lien of the Security Instrument, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect Total Defeasance Collateral pledged pursuant to the Securities Security Agreement shall be the sole source of such series collateral securing the Note, and Lender shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered return to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that Borrower all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.unapplied
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Consolidated Tomoka Land Co)
Defeasance. Except as provided belowIf the District shall pay or cause to be paid, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:or there shall
(a) by paying or causing to be paid the Company principal of, premium, if any, and interest on such Loan or Parity Loan, as and when the Guarantor has irrevocably deposited in trust same become due and payable;
(b) by depositing with the Trustee as trust funds solely Authority Trustee, in trust, at or before maturity, money which, together with the amounts then on deposit in the Repayment Fund and available for such purpose, is fully sufficient to pay the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on such Loan or Parity Loan, as and when the Securities of such seriessame shall become due and payable; or
(c) by depositing with the Authority Trustee or another escrow bank appointed by the District, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of in trust, Federal Securities, in which the District may lawfully invest its money, in such amount as will be sufficient, together with the opinion of a nationally recognized firm of independent public accountants expressed interest to accrue thereon and moneys then on deposit in a written certification thereof delivered the Repayment Fund and available for such purpose, together with the interest to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trusteeaccrue thereon, to pay and discharge the Principal principal of and accrued interest on such Loan or Parity Loan, as and when the same shall become due and payable; then, at the election of the District, and notwithstanding that the Loan and any Parity Loan shall not have been surrendered for payment, all obligations of the District under this Agreement and any Supplemental Agreement with respect to such Loan or Parity Loan shall cease and terminate, except for the obligation of the Authority Trustee to pay or cause to be paid the Loan and any Parity Loan not so surrendered and paid, all sums due thereon from the amounts described above and except for the covenants of the District contained in Section 5.2(f) or any covenants in a Supplemental Agreement relating to compliance with the Code. Notice of such election shall be filed with the Authority Trustee not less than ten days prior to the proposed defeasance date, or such shorter period of time as may be acceptable to the Authority Trustee. In connection with a defeasance under (c) above, there shall be provided to the District and the Authority Trustee, a verification report from an Independent Accountant, stating its opinion as to the sufficiency of the moneys or securities deposited with the Authority Trustee or the escrow bank to pay and discharge the principal of and interest on the outstanding Securities of such series Loan and any Parity Loans to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)be defeased in accordance with this Section, as and when the case may be;
(b) such deposit will not result same shall become due and payable. The Loan and any Parity Loans shall be deemed unpaid under this Agreement unless and until they are in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company fact paid and retired or the Guarantorabove criteria are met. Upon a defeasance, as the case may beAuthority Trustee, is a party or by which it is bound;
(c) no Default upon request of the District, shall release its rights and the rights of the Owners hereunder with respect to the Securities Loan and Parity Loans which have been defeased under this Agreement and any Supplemental Agreement and execute and deliver to the District all such instruments as may be desirable to evidence such release, discharge and satisfaction. In the case of such series a defeasance hereunder of all Loan and Parity Loans, the Authority Trustee shall have occurred pay over or deliver to the District any funds held by the Authority Trustee hereunder at the time of a defeasance, which are not required for the purpose of paying and be continuing discharging the principal of or interest on the date Loan and Parity Loans when due. The Authority Trustee shall, at the written direction of such deposit;
(d) the Company shall have delivered District, send a notice to the Trustee either (x) a ruling directed to Bondowners, in the Trustee received from manner set forth in the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount Authority Indenture and in the same manner and at form directed by the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of CounselDistrict, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivehas occurred.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the GuarantorCompany, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption, as the case may be; provided that any redemption (before maturity shall be irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge the Company's exercise of its option under this Section 9.02 8.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveabove and (2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 8.02 of the Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.077.07, 8.08, 9.04 7.08 and 9.05, as applicable, 8.05 with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 8.07 7.07 and 9.05, as applicable, 8.05 shall survive.
Appears in 2 contracts
Sources: Senior Indenture (Delta Air Lines Inc /De/), Subordinated Indenture (Delta Air Lines Inc /De/)
Defeasance. Except as provided below, the Company Issuer will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the GuarantorIssuer, shall execute proper instruments in form and substance satisfactory to the Issuer and the Trustee acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company or the Guarantor Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and dedicated solely for the benefit of the to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, Issuer is a party or by which it is bound;
(ciii) no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company Issuer shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge the Issuer's exercise of its option under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveabove and based upon a change in law and (2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(ev) the Company Issuer has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The Issuer's obligations of the Company and the Guarantor in Sections 2.02 2.03 through 2.122.11, 4.023.02, 8.075.06, 8.08, 9.04 5.09 and 9.05, as applicable, 9.05 with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Issuer's obligations of the Company and the Guarantor in Sections 8.07 5.06 and 9.05, as applicable, 9.05 shall survive.
Appears in 2 contracts
Defeasance. Except as provided belowThe investments in the defeasance escrow relating to the Series 2016 Certificates shall be limited to non-callable, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all direct obligations in respect of the Securities United States of America and securities fully and unconditionally guaranteed as to the timely payment of principal and interest by the United States of America, or as otherwise maybe authorized under State law and approved by BAM. At least three (3) Business Days prior to any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect defeasance with respect to the Securities Series 2016 Certificates, the Corporation or the County, as agent for the Corporation, shall deliver to BAM draft copies of such series an escrow agreement, an opinion of Special Tax Counsel regarding the validity and enforceability of the escrow agreement and the Guarantee thereof (and the Trustee, at the expense defeasance of the Company Series 2016 Certificates, a verification report (a “Verification Report”) prepared by a nationally recognized independent financial analyst or firm of certified public accountants regarding the sufficiency of the escrow fund. Such opinion and Verification Report shall be addressed to BAM and shall be in form and substance satisfactory to BAM. In addition, the Guarantor, escrow agreement shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedprovide that:
(a) Any substitution of securities following the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit execution and delivery of the Holders escrow agreement shall require the delivery of a Verification Report, an opinion of Special Tax Counsel that such substitution will not adversely affect the Securities of such series, for payment of the Principal of and exclusion (if interest on the Securities Series 2016 Certificates is excludable) from gross income of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely the holders of money, in the opinion Series 2016 Certificates of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss Series 2016 Certificates for federal income tax purposes and the prior written consent of BAM, which consent will not be unreasonably withheld.
(b) Neither the Corporation nor the County will exercise any prior optional redemption of Series 2016 Certificates secured by the escrow agreement or any other redemption other than mandatory sinking fund redemptions unless (i) the right to make any such redemption has been expressly reserved in the escrow agreement and such reservation has been disclosed in detail in the official statement for the refunding Certificates, and (ii) as a result of condition to any such discharge under this Section 9.02 and will redemption there shall be subject provided to federal income tax on the same amount and in the same manner and at the same times BAM a Verification Report as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as sufficiency of escrow receipts without reinvestment to meet the ruling described in clause (x) above; andescrow requirements remaining following any such redemption.
(ec) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company Corporation and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, County shall not amend the escrow agreement or enter into a forward purchase agreement or other agreement with respect to rights in the Securities escrow without the prior written consent of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveBAM.
Appears in 2 contracts
Sources: Trust Agreement, Trust Agreement
Defeasance. Except If and when any Outstanding Certificates shall be
(a) By well and truly paying or causing to be paid the principal and interest and prepayment premiums (if any) evidenced by such Certificates Outstanding, as provided below, and when the Company will be deemed to have paid same become due and the Company and the Guarantor will be discharged from any payable and all obligations Additional Rent;
(b) By making an irrevocable deposit with the Trustee, in respect trust, at or before a scheduled payment date, of money that, together with the Securities amounts then on deposit in the Lease Payment Fund is fully sufficient to pay such Certificates Outstanding, including all principal and interest and premium, if any, evidenced thereby and all Additional Rent;
(c) By making an irrevocable deposit with the Trustee, in trust, of any series and Defeasance Obligations, together with money, if required, in such amount as will, in the Guarantee opinion of an independent certified public accountant acceptable to the Trustee, together with the interest to accrue thereon, but without reinvestment thereof, and amounts then on deposit in the provisions Lease Payment Fund together with the interest to accrue thereon, be fully sufficient to pay and discharge such Certificates (including all principal and interest) at their respective specified principal payment dates and pay all unpaid Additional Rent; or
(d) By making an irrevocable deposit with the Trustee, pursuant to an escrow deposit and trust agreement, of this Indenture will no longer security for the payment of Lease Payments and Additional Rent as more particularly described in Section 10.1 of the Lease Agreement, said security to be in effect held by the Trustee as agent for the Lessee to be applied by the Trustee to pay the Lease Payments and Additional Rent as the same become due and payable, pursuant to Section 10.1 of the Lease Agreement; notwithstanding that any Certificates shall not have been surrendered for payment, all obligations of the Lessor, the Trustee and the Lessee with respect to such Outstanding Certificates shall cease and terminate, except only the Securities obligation of such series the Trustee to pay or cause to be paid, from Lease Payments paid by or on behalf of the Lessee from funds deposited pursuant to paragraphs (b) through (d) of this Section, to the Owners of the Certificates not so surrendered and paid all sums due with respect thereto, and in the Guarantee event of deposits pursuant to paragraphs (b) through (d) of this Section, the Certificates shall continue to evidence direct and proportionate interests of the Owners thereof (and in Lease Payments pursuant to the Lease Agreement. Any funds held by the Trustee, at the expense time of one of the Company and events described in paragraphs (a) through (d) of this Section, that are not required for the Guarantorpayment to be made to Owners, shall execute proper instruments acknowledging first be applied to the same)payment of Additional Rent and, thereafter, be paid over to the Lessee, subject to Section 9.8 hereof. Any Certificate or portion thereof in Authorized Denominations may be paid and discharged as provided in this Section; provided provided, however, that the following conditions if any such Certificate or portion thereof is to be prepaid, notice of such prepayment shall have been satisfied:
(a) given in accordance with the Company provisions hereof or the Guarantor has irrevocably deposited in trust with Lessee shall have submitted to the Trustee instructions expressed to be irrevocable as trust funds solely for to the benefit date upon which such Certificate or portion thereof is to be prepaid and as to the giving of notice of such prepayment; provided further, that if any such Certificate or portion thereof will not be paid or prepaid as to principal within 60 days of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, deposit referred to in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
paragraphs (b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
through (d) of this Section, the Company Trustee shall have delivered give notice of such deposit by first class mail to the Trustee either (x) a ruling directed Owners. If the Lessee prepays the Lease Payments and Additional Rent in full pursuant to Article X of the Lease Agreement, makes the advance deposit required by Section 10.1 of the Lease Agreement or pays all Lease Payments and Additional Rent during the term of the Lease Agreement as the same become due and payable, all right, title and interest of the Trustee received from and the Internal Revenue Service Lessor in and to the effect that the Holders each element of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 Leased Property shall be transferred to and will be subject to federal income tax on the same amount and vested in the same manner and at Lessee. Title shall be vested in the same times as would have been Lessee hereunder without the case if such deposit and defeasance had not occurred or (y) an Opinion necessity for any further instrument of Counsel to the same effect as the ruling described in clause (x) abovetransfer; and
(e) the Company has delivered to but the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 Lessor agree to take any and 9.05, as applicable, with respect all steps and execute and record any and all documents reasonably required by the Lessee to the Securities consummate such vesting of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivetitle.
Appears in 2 contracts
Sources: Trust Agreement, Trust Agreement
Defeasance. Except as provided below(a) Subject to Sections 16.1(b) and 16.2, the Company will be deemed to have paid Issuer at any time may terminate (i) all its obligations under this Indenture, the Bonds and the Company Collateral Documents (a "Legal Defeasance") or (ii) any of its covenants, other than its obligation to make payments on the Bonds pursuant to Section 2.10 (a "Covenant Defeasance"). With respect to any Covenant Defeasance, except as specified in clause (ii) of the preceding sentence, the remainder of this Indenture and the Guarantor will Bonds, shall be discharged from unaffected thereby. The Issuer may exercise a Legal Defeasance notwithstanding the prior exercise of a Covenant Defeasance. If the Issuer exercises a Legal Defeasance, payment of the Bonds may not be accelerated due to an Event of Default. Upon satisfaction of the conditions set forth herein and on demand of the Issuer, the Trustee (x) shall acknowledge in writing the discharge of the obligations terminated by the Issuer, (y) shall execute documents and deliver such instruments in writing as shall be required to reconvey, release, assign and deliver to the Issuer any and all obligations of the Trustee's interest in the Collateral, the right, title and interest in and to any and all rights conveyed, assigned or pledged to the Trustee or otherwise subject to this Indenture, except amounts in the funds required to be paid to the Issuer under this Indenture, and (z) shall turn over to the Issuer or to any such person, body or authority as may be entitled to receive the same all balances then held by it hereunder. Covenant Defeasance, as effected hereby, means that the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth under any of the Securities covenants in this Indenture except as set forth hereinabove, whether directly or indirectly by reason of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be reference elsewhere herein to any such covenant or Section or to any other provision herein or in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;document.
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Notwithstanding Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x16.1(a) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company Issuer pursuant to Sections 2.8, 2.9, Section 2.10 and 11.5 shall survive until the Guarantor Bonds have been paid in Sections 8.07 and 9.05full. Thereafter, as applicable, the obligations of the Issuer pursuant to Section 11.5 shall survive.
Appears in 2 contracts
Sources: Indenture (NRG Energy Inc), Indenture (Somerset Power LLC)
Defeasance. Except as provided below(A) If the Trust shall pay or cause to be paid, or there shall otherwise be paid, to the Registered Owners of any Series of Bonds then Outstanding, the Company will principal amount and interest and Redemption Price, if any, to become due thereon, at the times and in the manner stipulated therein and in this Trust Agreement, and if no Reimbursement Obligations or Qualified Hedge Payments then due and payable remain unpaid relating to such Series of Bonds or payment of such Reimbursement Obligations or Qualified Hedge Payments have been provided for, then the pledge of any Revenues or other moneys and securities pledged by this Trust Agreement and all other rights granted by this Trust Agreement securing such Series of Bonds shall be discharged and satisfied. In such event, the Master Trustee shall, upon request of the Trust, execute and deliver to the Trust all such instruments as may be desirable to evidence such release and discharge and shall pay over or deliver to the Trust all moneys or securities held by it pursuant to this Trust Agreement which are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption or for the payment of Reimbursement Obligations or Qualified Hedge Payments.
(B) Bonds or portion thereof or interest installments for the payment or redemption of which moneys shall be held by a Fiduciary (through deposit by the Trust of funds for such payment or redemption or otherwise), whether at or prior to the maturity or the redemption date of such Bonds, shall be deemed to have been paid within the meaning and with the Company effect expressed in paragraph (A) of this Section 11.
1. All Outstanding Bonds of any Series or any part of a Series shall prior to the maturity or redemption date thereof be deemed to have been paid within the meaning and with the Guarantor will effect expressed in paragraph (A) of this Section 11.1 if (i) in case any of said Bonds are to be discharged from redeemed on any and all obligations date prior to their maturity, an Authorized Officer shall have given to the Master Trustee, in respect form satisfactory to it, irrevocable instructions to provide, as provided in Article IV, notice of redemption on said date of such Bonds, (ii) there shall have been deposited with a Fiduciary either (x) moneys in an amount which shall be sufficient or (y) Defeasance Obligations (a) not subject to redemption at the option of the Securities issuer thereof prior to the due date thereof or (b) as to which an irrevocable notice of any series redemption of such securities on a specified redemption date has been given and such securities are not otherwise subject to redemption prior to such specified date other than at the Guarantee thereof, and option of the owner thereof or (C) upon compliance with the provisions of paragraph (E) of this Indenture will no longer be in effect with respect Section 11.1 which are subject to the Securities of such series and the Guarantee thereof (and the Trustee, redemption prior to maturity at the expense option of the Company and issuer thereof on a specified date or dates, in each case the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on which when due will provide moneys which, together with the Securities moneys, if any, deposited with a Fiduciary at the time of deposit of such seriesDefeasance Obligations, money or U.S. Government Obligations or a combination thereof shall be sufficient (unless such funds consist solely of moneywithout reference to any forward purchase agreement as hereinafter provided), in the opinion of as certified by a nationally recognized firm of independent public accountants expressed in or a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trusteecertified public accountant, to pay when due the principal amount or Redemption Price, if applicable, and discharge the Principal of interest due and accrued interest to become due on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory said Bonds on and prior to the Trustee), as the case may be;
(b) such deposit will not result in a breach redemption date or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantormaturity date thereof, as the case may be, is a party or and in the event said Bonds do not mature and are not by which their terms subject to redemption within the next succeeding 60 days, an Authorized Officer shall have given the Master Trustee in form satisfactory to it is bound;
(c) no Default with respect irrevocable instructions to provide, as soon as practicable, written notice to the Securities Registered Owners of such series Bonds that the deposit required by clause (ii) above has been made with a Fiduciary and that said Bonds are deemed to have been paid in accordance with paragraph (A) of this Section 11.1 and stating the maturity or redemption date upon which moneys are to be available for the payment of the principal amount or Redemption Price, if applicable, on said Bonds. Neither Defeasance Obligations nor moneys deposited with a Fiduciary pursuant to this Section nor principal or interest payments on any such Defeasance Obligations shall have occurred be withdrawn or used for any purpose other than, and all of the same shall be continuing held in trust for, the payment of the principal amount or Redemption Price, if applicable, and interest on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee said Bonds, provided, however that any cash received from the Internal Revenue Service principal or interest payments on such Defeasance Obligations deposited with a Fiduciary, if not then needed for such purpose, may, to the effect extent practicable be reinvested in Defeasance Obligations as directed by an Authorized Officer or, in lieu of such direction at the time of receipt, an Authorized Officer may authorize and direct such Fiduciary to enter into one or more forward purchase agreements providing for the purchase of Defeasance Obligations at future dates, provided, further, that if such amounts shall have been derived from the proceeds of any Tax Exempt Bonds or bonds not issued hereunder which shall have been issued on the basis that the Holders interest thereon is not includable in the gross income of the Securities of such series will not recognize income, gain or loss Registered Owner thereof for federal income tax purposes, any such amounts may be reinvested, or any such forward purchase agreement may be executed only upon receipt by the Master Trustee of a Bond Counsel’s opinion that such reinvestment or forward purchase agreement shall not adversely affect the exclusion of the interest on such Tax Exempt Bonds or other bonds from gross income for federal income tax purposes. In the event of any conflict between the terms of such forward purchase agreement and this Trust Agreement, the provisions of this Trust Agreement shall apply. After the making of the payments for which such Defeasance Obligations or moneys were held, any surplus shall be promptly paid over to the Trust, as received by such Fiduciary, free and clear of any trust, lien or pledge or assignment securing the Bonds or otherwise existing under this Trust Agreement.
(C) For purposes of determining whether Variable Rate Bonds shall be deemed to have been paid prior to the maturity or redemption date thereof, as the case may be, by the deposit of moneys, or Defeasance Obligations and moneys, if any, in accordance with paragraph (B)(ii) hereof, the interest to come due on such Variable Rate Bonds on or prior to the maturity date or redemption date thereof, as the case may be, shall be calculated at the maximum rate of interest applicable to such Bonds if in effect with respect to such Bonds, provided that if on any date, as a result of such discharge under this Section 9.02 Variable Rate Bonds having borne interest at less than such maximum rate of interest for any period, the total amount of moneys and will be subject to federal income tax Defeasance Obligations on deposit with the same Fiduciary for the payment of interest on such Variable Rate Bonds is in excess of the total amount and in the same manner and at the same times as which would have been required to be deposited with the case Fiduciary on such date in respect of such Variable Rate Bonds in order to satisfy the provisions of paragraph (B)(ii) above, the Fiduciary shall, if requested by the Trust, pay promptly the amount of such deposit and defeasance had not occurred or (y) an Opinion of Counsel excess to the same effect as Trust free and clear of any trust, lien, pledge or alignment securing the ruling described Bonds or otherwise existing under this Trust Agreement.
(D) Tender Bonds shall be deemed to have been paid in clause accordance with paragraph (xB)(ii) hereof only if, in addition to satisfying the requirements thereof, there shall have been deposited with a Fiduciary moneys in an amount which shall be sufficient to pay when due the maximum amount of principal of and premium, if any, and interest on such Bonds which could become payable to the Registered Owners of such Bonds upon the exercise of any options provided to the Registered Owners of such Bonds, provided that if, at the time a deposit is made with a Fiduciary pursuant to the provisions of paragraph (B)(ii) above; and
(e) , the Company has delivered to options originally exercisable by the Trustee an Officers’ Certificate and an Opinion Registered Owner of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities Tender Bonds are no longer outstandingexercisable, such Bonds shall not be considered Tender Bonds for purposes of this paragraph (D). Thereafter, only the obligations If any portion of the Company moneys deposited with a Fiduciary for the payment of the principal amount of and premium, if any, and interest on Tender Bonds is not required for such purpose, the Fiduciary shall, if requested by the Trust, pay promptly the amount of such excess to the Trust free and clear of any trust, lien, pledge or assignment securing said Bonds or otherwise existing under this Trust Agreement.
(E) Defeasance Obligations described in paragraph (B)(ii) above may be included in the Defeasance Obligations deposited with a Fiduciary in order to satisfy the requirements of paragraph (B)(ii) above only if the determination as to whether moneys and Defeasance Obligations to be deposited with a Fiduciary in order to satisfy the requirements of such paragraph (B)(ii) above would be sufficient to pay when due either on the maturity date thereof or, in the case of any Bonds to be redeemed prior to the maturity date thereof, on the redemption date or dates specified in any notice of redemption to be made by the Master Trustee or in the instructions to give a notice of redemption provided to the Master Trustee in accordance with paragraph (B)(ii) above, the principal of or Redemption Price, if applicable, and interest on the Bonds which will be deemed to have been paid as provided in paragraph (B)(ii) above is made both (i) on the assumption that the Defeasance Obligations described in paragraph (B)(ii) above were not redeemed at the option of the issuer prior to the maturity date thereof and (ii) on the assumption that such Defeasance Obligations would be redeemed by the issuer thereof at its option on each date on which such option could be exercised, that as of such date or dates interest ceased to accrue on such Defeasance Obligations and that the proceeds of such redemption would not be reinvested by the Fiduciary.
(F) Anything in this Trust Agreement to the contrary notwithstanding (but subject to applicable escheat law) any moneys held by a Fiduciary in trust for the payment and discharge of any Bonds which remain unclaimed for three years after the date when such Bonds have become due and payable, either at their stated maturity dates or by call for earlier redemption, if such moneys were held by the Fiduciary at such date, or for six months less than the applicable statutory escheat period (as determined by an Authorized Officer) if such moneys were deposited with the Fiduciary after the date when such Bonds become due and payable, shall, upon written direction from the Trust, be paid to the Trust as its absolute property and free from trust, and such Fiduciary shall thereupon be released and discharged with respect thereto and the Guarantor Owners shall look only to the Trust for the payment of such Bonds, provided that before being required to make any such payment to the Trust, such Fiduciary shall, at the expense of the Trust, cause to be published at least twice, at an interval of not less than seven days between publications, in Sections 8.07 Authorized Newspapers, a notice that said moneys remain unclaimed it and 9.05that, as applicableafter a date named in said notice, which date shall survivenot be less than 30 days after the date of the first publication of such notice, the balance of such moneys then unclaimed will be returned promptly to the Trust.
Appears in 2 contracts
Sources: Master Trust Agreement, Master Trust Agreement
Defeasance. Except as provided belowAt any time prior to the Anticipated Repayment Date for any Component then outstanding, the Company will be deemed to Borrowers may Defease all Components of the Loan at any time, as of the last day of an Interest Accrual Period, in accordance with the following provisions:
(A) Lender shall have paid received from the Borrowers not less than thirty (30) days’ prior written notice specifying the date proposed for such Defeasance and the Company amount which is to be Defeased (which amount must represent the aggregate Component Principal Balance of all then outstanding Components of the Loan)).
(B) The Borrowers shall also pay to Lender all interest due through and including the Guarantor will be discharged from last day of the Interest Accrual Period during which such defeasance is being made, together with any and all obligations in respect other amounts due and owing pursuant to the terms of the Securities of Loan Documents, including, without limitation, then outstanding Administrative Fees and any series and the Guarantee thereof, and the provisions of this Indenture will no longer be costs incurred in effect connection with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:a Defeasance.
(aC) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit No Event of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing continuing.
(D) The Borrowers shall (i) deliver Federal Obligations sufficient to make the Scheduled Defeasance Payments to Lender and (ii) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the date Federal Obligations purchased by Borrowers in accordance with the terms of this Section 11.3 (the “Security Agreement”); (2) an Officer’s Certificate certifying that the requirements set forth in this Section 11.3 have been satisfied; (3) an opinion of counsel for the Borrowers in form and substance reasonably satisfactory to Lender stating, among other things, that Lender has a first priority perfected security interest in the Federal Obligations; (4) a certificate, in form and substance reasonably satisfactory to Lender from an independent certified public accountant confirming that the requirements of Section 11.3(D)(i) have been satisfied; and (5) such deposit;other certificates, documents, opinions or instruments as Lender may reasonably request.
(dE) the Company Lender shall have received a Rating Agency Confirmation.
(F) If the Borrowers will continue to own any assets other than the Federal Obligations delivered to Lender, the Trustee either Borrowers shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (x) the “Successor Borrowers”), with respect to which a ruling directed substantive non-consolidation opinion satisfactory to Lender has been delivered to Lender (provided, that a non-consolidation opinion substantially equivalent to the Trustee received from non-consolidation opinion delivered to Lender on the Internal Revenue Service Closing Date shall be deemed satisfactory to Lender) and the Borrowers shall transfer and assign to the Successor Borrowers all obligations, rights and duties under the Notes and the Security Agreement, together with the pledged Federal Obligations. The Successor Borrowers shall assume the obligations of the Borrowers under the Notes and the Security Agreement and the Borrowers shall be relieved of their obligations hereunder and thereunder. The Borrowers shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrowers as consideration for assuming such Borrowers obligations.
(G) The Borrower shall deliver an opinion of counsel to the effect that the Holders Defeasance will not constitute a “significant modification” of the Securities Loan or a “deemed exchange” of such series will not recognize income, gain or loss for federal income tax purposes as a result the Notes under section 1001 of such discharge under the IRC.
(H) If the Borrowers Defease all Components pursuant to this Section 9.02 11.3, Lender shall, promptly upon satisfaction of all the following terms and will be subject to federal income tax on the same amount conditions execute, acknowledge and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel deliver to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 Borrowers a release of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, applicable Loan Documents with respect to the Securities Sites in recordable form for such Release; provided that the Borrowers shall, at their sole expense, prepare any and all documents and instruments necessary to effect the Release, all of such series which shall be subject to the reasonable approval of Lender, and the Guarantee thereof Borrowers shall survive until such Securities are no longer outstanding. Thereafterpay all costs reasonably incurred by Lender (including, only but not limited to, reasonable attorneys’ fees and disbursements, title search costs or endorsement premiums) in connection with the obligations review, execution and delivery of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveRelease.
Appears in 2 contracts
Sources: Loan and Security Agreement (American Tower Corp /Ma/), Loan and Security Agreement (American Tower Corp /Ma/)
Defeasance. Except as The following provisions shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution, Officer’s Certificate or indenture supplemental hereto provided pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to Section 10.1, in the case of any series of Securities the exact amounts (including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause (a) below, the Company will Issuer shall be deemed to have paid and discharged the Company and the Guarantor will be discharged from any and entire indebtedness on all obligations in respect of the Securities of any such a series and the Guarantee thereofCoupons appertaining thereto on the date of the deposit referred to in subparagraph (a) below, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and Coupons appertaining thereto shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of Securities of such series and of Coupons appertaining thereto pursuant to Section 2.8 and the Guarantee Issuer’s right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons appertaining thereto to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of such series of Securities to the extent to be exercised to make such call for redemption within one year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, (vi) the rights of the Holders of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (vii) the obligations of the Issuer under Section 3.2) and the Trustee, at the expense of the Company and the GuarantorIssuer, shall at the Issuer’s request, execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:, if
(a) with reference to this provision the Company or the Guarantor Issuer has irrevocably deposited in trust or caused to be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely for to, the benefit of the Holders of the Securities of such seriesseries and Coupons appertaining thereto (i) cash in an amount, for payment or (ii) in the case of any series of Securities the Principal of payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to principal and interest on at such times and in such amounts as will insure the Securities availability of such series, money cash or U.S. Government Obligations or (iii) a combination thereof sufficient (unless such funds consist solely of moneythereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants accountants, an independent investment banking firm or other valuation firm expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay (A) the principal and discharge the Principal of and accrued interest on the outstanding all Securities of such series to maturity and Coupons appertaining thereto on each date that such principal or earlier redemption interest is due and payable and (irrevocably provided for under arrangements satisfactory to B) any mandatory sinking fund payments on the Trustee), as dates on which such payments are due and payable in accordance with the case may beterms of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, Issuer is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have Issuer has delivered to the Trustee either an Opinion of Counsel based on the fact that (x) the Issuer has received from, or there has been published by, the IRS a ruling directed to or (y) since the Trustee received from date hereof, there has been a change in the Internal Revenue Service applicable United States Federal income tax law, in either case to the effect that that, and such opinion shall confirm that, the Holders and beneficial owners of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for federal United States Federal income tax purposes as a result of such deposit, defeasance and discharge under this Section 9.02 and will be subject to federal United States Federal income tax on the same amount and in the same manner and at the same times times, as would have been the case if such deposit deposit, defeasance and defeasance discharge had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveoccurred; and
(ed) the Company Issuer has delivered to the Trustee an Officers’ Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series provision have been complied with. The obligations of If the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, Issuers exercise either their legal defeasance option or their covenant defeasance option with respect to the Securities of such a particular series, all Guarantees by Subsidiary Guarantors will terminate with respect to that series of Securities and all collateral of the Issuer and the Guarantee thereof Subsidiary Guarantors granted for the benefit of that series of Securities shall survive until such Securities are no longer outstandingbe automatically released . Thereafter, only the obligations The Issuers may exercise their legal defeasance option notwithstanding its prior exercise of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveits covenant defeasance option.
Appears in 2 contracts
Sources: Indenture (Smart Balance, Inc.), Indenture (Smart Balance, Inc.)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the GuarantorCompany, shall execute proper instruments acknowledging the same); provided PROVIDED that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 8.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 8.02 of the Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.077.07, 8.087.08, 9.04 8.04 and 9.05, as applicable, 8.05 with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 8.07 7.07 and 9.05, as applicable, 8.05 shall survive.
Appears in 2 contracts
Sources: Subordinated Indenture (Credit Suisse Group), Senior Indenture (Credit Suisse Group)
Defeasance. Except as provided below, the Company will (a) Baytex shall be deemed to have paid fully paid, satisfied and the Company and the Guarantor will be discharged from any and all obligations in respect of the outstanding Debt Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the request and expense of the Company and the GuarantorBaytex, shall execute and deliver proper instruments acknowledging the same); provided that full payment, satisfaction and discharge of such Debt Securities, when, with respect to all of the following conditions shall have been satisfiedoutstanding Debt Securities or all of the outstanding Debt Securities of any series, as applicable, if:
(ai) the Company Baytex has deposited or the Guarantor has irrevocably caused to be deposited in trust with the Indenture Trustee as trust funds solely or property in trust for the benefit purpose of the Holders of the Securities of making payment on such seriesDebt Securities, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of an amount in money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered sufficient to the Trustee) without consideration of any reinvestment and after payment of all federalpay, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay satisfy and discharge the Principal entire amount of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation principal of, or constitute a default underPremium, this Indenture if any, and interest, if any, to Maturity or any other material agreement repayment date or instrument to which the Company or the GuarantorRedemption Dates, as the case may be, is a party of such Debt Securities as will, together with the income to accrue thereon and reinvestment thereof, be sufficient to pay and discharge the entire amount of principal and accrued and unpaid interest to Maturity or by which it is boundany repayment date, as the case may be, of all such Debt Securities;
(cii) no Default Baytex has paid, caused to be paid or made provisions to the satisfaction of the Indenture Trustee for the payment of all other sums payable with respect to the Securities all of such series shall have occurred and be continuing on Debt Securities (together with all applicable expenses of the date Indenture Trustee in connection with the payment of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveDebt Securities); and
(eiii) the Company Baytex has delivered to the Indenture Trustee an Officers’ ' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent herein provided for herein relating to the defeasance contemplated by this Section 9.02 payment, satisfaction and discharge of the all such Debt Securities of such series have been complied with. The obligations Any deposits with the Indenture Trustee referred to in this Section 7.6 shall be irrevocable, subject to Section 7.7, and shall be made under the terms of an escrow and/or trust agreement and which provides for the due and punctual payment of the Company principal of, Premium, if any, and interest on the Guarantor Debt Securities being satisfied.
(b) Upon the satisfaction of the conditions set forth in Sections 2.02 through 2.12this Section 7.6 with respect to all the outstanding Debt Securities, 4.02, 8.07, 8.08, 9.04 and 9.05or all the outstanding Debt Securities of any series, as applicable, the terms and conditions of the Debt Securities, including the terms and conditions with respect to the Securities of such series thereto set forth in this Indenture (other than those contained in Article 2 and 4 and the Guarantee thereof provisions of Article 1 pertaining to Article 2 and 4) shall survive no longer be binding upon or applicable to Baytex.
(c) Any funds or obligations deposited with the Indenture Trustee pursuant to this Section 7.6 shall be denominated in the currency or denomination of the Debt Securities in respect of which such deposit is made.
(d) If the Indenture Trustee is unable to apply any money in accordance with this Section 7.6 by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, Baytex's obligations under this Indenture and the affected Debt Securities shall be revived and reinstated as though no money had been deposited pursuant to this Section 7.6 until such time as the Indenture Trustee is permitted to apply all such money in accordance with this Section 7.6, provided that if Baytex has made any payment in respect of principal of, Premium, if any, or interest on Debt Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05or, as applicable, other amounts because of the reinstatement of its obligations, Baytex shall survivebe subrogated to the rights of the holders of such Debt Securities to receive such payment from the money held by the Indenture Trustee.
Appears in 2 contracts
Sources: Trust Indenture (Baytex Energy Corp.), Trust Indenture (Baytex Energy Corp.)
Defeasance. Except Seller shall incur no cost, expense or liability in connection with the Defeasance except as expressly provided belowin this Section 4.6.2. Notwithstanding anything stated to the contrary herein, provided the Closing occurs, Seller shall pay (i) the Excess Defeasance Securities Amount, not to exceed Fifteen Million Dollars ($15,000,000), and (ii) fifty percent (50%) of all other costs, expenses, fees and/or other amounts incurred or otherwise required to be paid in connection with the Defeasance including, without limitation, fees and costs of accountants, defeasance consultants and legal counsel. Company will be deemed shall use good faith efforts to have paid disclose in writing to Seller all such costs, expenses, fees and amounts prior to the Company and time the Guarantor will be discharged from any and all obligations in respect same are incurred or promptly after learning of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer same. The Company shall be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely responsible for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed the Excess Defeasance Securities Amount to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of extent such series will not recognize incomeamount exceeds Fifteen Million Dollars ($15,000,000), gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion fifty percent (50%) of Counsel all other costs, expenses, fees and/or other amounts incurred or otherwise required to be paid in connection with the Defeasance including, without limitation, fees and costs of accountants, defeasance consultants and legal counsel and (z) if the Closing does not occur and this Agreement is terminated, all costs, expenses, fees and other amounts incurred or otherwise required to be paid in connection with the Defeasance. Each of Seller and Company shall promptly provide to the same effect as other all information that may reasonably be required in order to effectuate the ruling described in clause (x) above; and
(e) Defeasance. For the Company has delivered to the Trustee an Officers’ Certificate and an Opinion purposes of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 4.6.2, "Excess Defeasance Securities Amount" shall mean the amount by which the cost of the Securities of such series have been complied with. The obligations securities needed to be acquired in order to effectuate the Defeasance exceeds the then outstanding principal balance of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveMortgage Loan.
Appears in 2 contracts
Sources: Agreement for Sale of Membership Interests (KBS Real Estate Investment Trust, Inc.), Agreement for Sale of Membership Interests (Gramercy Capital Corp)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from (i) Notwithstanding any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect Section 2.4 to the Securities contrary, including, without limitation, subsection (a) of such series and the Guarantee thereof (and the Trusteethis Section 2.4, at any time following the expense earlier to occur of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit expiration of the Holders REMIC Prohibition Period or (b) May 1, 2010, Borrower may cause the release of the Securities of such series, for payment Property from the lien of the Principal Mortgage and the other Loan Documents upon the satisfaction of and interest on the Securities following conditions:
(A) no Event of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely Default shall exist under any of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beLoan Documents;
(bB) not less than forty-five (45) (but not more than ninety (90)) days prior written notice shall be given to Lender specifying a date on which the Defeasance Collateral (as hereinafter defined) is to be delivered (the “Release Date”), such deposit will date being on a Scheduled Payment Date; provided, however, that Borrower shall have the right (i) to cancel such notice by providing Lender with notice of cancellation ten (10) days prior to the scheduled Release Date, or (ii) to extend the scheduled Release Date until the next Scheduled Payment Date; provided that in each case, Borrower shall pay all of Lender’s costs and expenses incurred as a result of such cancellation or extension;
(C) all accrued and unpaid interest and all other sums due under the Note, this Agreement and under the other Loan Documents up to the Release Date, including, without limitation, all fees, costs and expenses incurred by Lender and its agents in connection with such release (including, without limitation, reasonable legal fees and expenses for the review and preparation of the Defeasance Security Agreement (as hereinafter defined) and of the other materials described in Section 2.4(b)(i)(D) below and any related documentation, and any servicing fees, Rating Agency fees or other costs related to such release), shall be paid in full on or prior to the Release Date;
(D) Borrower shall deliver to Lender on or prior to the Release Date:
(1) a pledge and security agreement, in form and substance satisfactory to a prudent institutional lender, creating a first priority security interest in favor of Lender in the Defeasance Collateral, as defined herein (the “Defeasance Security Agreement”), which shall provide, among other things, that any excess amounts received by Lender from the Defeasance Collateral over the amounts payable by Borrower on a given Scheduled Payment Date, which excess amounts are not result in required to cover all or any portion of amounts payable on a breach or violation future Scheduled Payment Date, shall be refunded to Borrower promptly after each such Scheduled Payment Date;
(2) (i) direct non-callable obligations of, or constitute guaranteed as to timely payment by, the United States of America or other obligations which are “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, or (ii) to the extent acceptable by the applicable Rating Agencies rating the Securities, other non-callable government securities satisfying applicable REMIC provisions (e.g., §§ 860A-860G of Subchapter M of the Code), that provide for payments prior and as close as possible to (but in no event later than) all successive Scheduled Payment Dates occurring after the Release Date during the Lockout Period, with each such payment being equal to or greater than the amount of the corresponding Monthly Payment Amount required to be paid under this Agreement and the Note (including all amounts due to fully prepay the outstanding principal balance of the Loan at the expiration of the Lockout Period) for the balance of the Lockout Period (the “Defeasance Collateral”), each of which shall be duly endorsed by the holder thereof as directed by Lender or accompanied by a default underwritten instrument of transfer in form and substance satisfactory to a prudent institutional lender (including, this Indenture or any other material agreement or instrument to which without limitation, such certificates, documents and instruments as may be required by the Company depository institution holding such securities or the Guarantorissuer thereof, as the case may be, is a party or by which it is boundto effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement the first priority security interest therein in favor of Lender in conformity with all applicable state and federal laws governing granting of such security interests;
(c3) a certificate of Borrower certifying that all of the requirements set forth in this Section 2.4(b)(i) have been satisfied;
(4) one or more opinions of counsel for Borrower that are customary in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (i) Lender has a perfected security interest in the Defeasance Collateral and that the Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, (ii) in the event of a bankruptcy proceeding or similar occurrence with respect to Borrower, none of the Defeasance Collateral nor any proceeds thereof will be property of Borrower’s estate under Section 541 of the U.S. Bankruptcy Code or any similar statute and the grant of security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the U.S. Bankruptcy Code or applicable state law, (iii) the release of the lien of the Mortgage and the pledge of Defeasance Collateral will not directly or indirectly result in or cause any REMIC Trust that then holds the Note to fail to maintain its status as a REMIC Trust and (iv) the defeasance will not cause any REMIC Trust to be an “investment company” under the Investment Company Act of 1940;
(5) a certificate in form and scope acceptable to a prudent institutional lender from an Acceptable Accountant certifying that the Defeasance Collateral will generate amounts sufficient to make all payments of principal and interest as and when due under the Note (including the prepayment of the principal balance of the Loan outstanding on the expiration of the Lockout Period); and
(6) such other certificates, documents and instruments as a prudent institutional lender may reasonably require; and
(E) in the event the Loan is held by a REMIC Trust, Lender has received written confirmation from any Rating Agency rating any Securities that substitution of the Defeasance Collateral will not result in a downgrade, withdrawal, or qualification of the ratings then assigned to any of the Securities.
(ii) Upon compliance with the requirements of Section 2.4(b)(i), the Property shall be released from the lien of the Mortgage and the other Loan Documents, and the Defeasance Collateral shall constitute sole collateral which shall secure the Note and all other obligations under the Loan Documents. Lender will, at Borrower’s expense, execute and deliver any agreements reasonably requested by Borrower to release the lien of the Mortgage and the other Loan Documents from the Property.
(iii) Upon the release of the Property in accordance with this Section 2.4(b), Borrower shall assign all its obligations and rights under the Note, together with the pledged Defeasance Collateral, to a successor entity designated and approved by Lender in its sole and absolute discretion (“Successor Borrower”). Successor Borrower shall execute an assignment and assumption agreement in form and substance satisfactory to a prudent institutional lender pursuant to which it shall assume Borrower’s obligations under the Note and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (A) deliver to Lender one or more opinions of counsel that are customary in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that such assignment and assumption agreement is enforceable against Borrower and the Successor Borrower in accordance with its terms and that the Note and the Defeasance Security Agreement, as so assigned and assumed, are enforceable against the Successor Borrower in accordance with their respective terms, and opining to such other matters relating to Successor Borrower and its organizational structure as Lender may reasonably require, and (B) pay all fees, costs and expenses incurred by Lender or its agents in connection with such assignment and assumption (including, without limitation, reasonable legal fees and expenses and for the review of the proposed transferee and the preparation of the assignment and assumption agreement and related certificates, documents and instruments and any fees payable to any Rating Agencies and their counsel in connection with the issuance of the confirmation referred to in subsection (b)(i)(E) above). Upon such assignment and assumption, Borrower shall be relieved of its obligations hereunder, under the Note, under the other Loan Documents and under the Defeasance Security Agreement, except as expressly set forth in the assignment and assumption agreement.
(iv) In no Default event shall Lender have any obligation to notify Borrower that a REMIC Prohibition Period is in effect with respect to the Securities of such series Loan, except that Lender shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the notify Borrower if any REMIC Prohibition Period is in effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities Loan after receiving any notice described in Section 2.4(b)(i)(B); provided, however, that the failure of Lender to so notify Borrower shall not impose any liability on Lender or grant Borrower any right to defease the Loan during any such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveREMIC Prohibition Period.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided PROVIDED that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.
Appears in 2 contracts
Sources: Subordinated Indenture (Credit Suisse Group), Senior Guaranteed Indenture (Credit Suisse Group)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions The principal balance of this Indenture will no longer Note may not be prepaid in effect whole or in part (except with respect to the Securities application of such series Involuntary Payments (as defined below)) prior to the Maturity Date; provided, however, Borrower shall have the right and option to release the Guarantee thereof “Trust Property” (and as defined in the Trustee, at Deed of Trust) from the expense lien of the Company Deed of Trust in accordance with the terms and provisions set forth in the GuarantorDeed of Trust (“Defeasance”). Notwithstanding the foregoing sentence, shall execute proper instruments acknowledging the same); provided that the following conditions Borrower shall have been satisfied:
the privilege to prepay the entire amount of the outstanding Debt on the first (1st) day of any of the three (3) calendar months preceding the month in which the scheduled Maturity Date occurs without Defeasance or the payment of the Yield Maintenance Premium (as defined in the Deed of Trust) or any other premium or penalty. Notwithstanding the foregoing, if prior to the scheduled Maturity Date (excluding, however, during the three (3) months preceding the scheduled Maturity Date) and during the existence of any Event of Default, Borrower shall tender payment of an amount sufficient to satisfy the Debt at any time prior to a sale of the Trust Property either through foreclosure or the exercise of the other remedies available to Lender under the Deed of Trust, such tender by Borrower shall be deemed to be voluntary and Borrower shall pay, in addition to the Debt, the greater of (a) the Company Yield Maintenance Premium, if any, that would be payable in connection with a Defeasance, or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, three percent (3%) of the unpaid principal balance of this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect Note. In addition to the Securities of such series foregoing, Borrower shall have occurred not be required to pay any fee or consideration if, in accordance with the terms and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders conditions of the Securities Deed of such series will not recognize incomeTrust, gain Lender receives (i) insurance proceeds or loss for federal income tax purposes other payments as a result of fire or other casualties, or (ii) awards or other payments made in any condemnation or eminent domain proceedings (collectively, “Involuntary Prepayments”), and such discharge under this Section 9.02 and will Involuntary Prepayments are applied by Lender toward reduction of the Debt; provided, however, if an Event of Default, or an event with notice and/or the passage of time would constitute an Event of Default, exists, then the Borrower shall pay to the Lender an additional amount equal to the greater of (A) the Yield Maintenance Premium, if any, that would be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case required if such deposit and defeasance Involuntary Prepayment had not occurred been Defeased, or (yB) an Opinion of Counsel to the same effect as the ruling described in clause three percent (x3%) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveInvoluntary Prepayment.
Appears in 2 contracts
Sources: Deed of Trust Note (Republic Property Trust), Deed of Trust Note (Republic Property Trust)
Defeasance. Except as provided below, the Company will Borrower shall not be deemed permitted at any time to have paid and the Company and the Guarantor will be discharged from defease all or any and all obligations in respect portion of the Securities Loan except as expressly provided in this Section 2.10. Provided that no Event of any series Default has occurred and is continuing, after the Guarantee thereofdate which is two (2) years after the Start-Up Day of the last Note securitized, and Borrower may voluntarily defease all of the provisions Loan (a “Full Defeasance”) or a portion of this Indenture will no longer be the Loan (a “Partial Defeasance”), in effect with respect either case, subject to the Securities satisfaction of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedprecedent:
(a) the Company Any Full Defeasance or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit Partial Defeasance of the Holders of the Securities of such series, for payment of the Principal of and interest Loan by Borrower shall be made on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;Payment Date,
(b) such deposit will Borrower shall provide not result in less than fifteen (15) days prior written notice to Lender specifying (i) a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to Payment Date (the “Defeasance Release Date”) on which the Company Full Defeasance or Partial Defeasance is to occur, and (ii) in the Guarantorevent of a Partial Defeasance, as the case may beIndividual Property proposed to be defeased; provided, that, Borrower shall be required to defease the Loan on the Defeasance Release Date specified in such notice unless such notice is a party or revoked in writing by Borrower prior to the such Defeasance Release Date in which it is bound;event Borrower shall immediately reimburse Lender for any reasonable costs incurred by Lender in connection with Borrower’s giving of such notice and revocation,
(c) no Default with respect to the Securities of such series Borrower shall have occurred paid to Lender all principal and be continuing interest accrued and unpaid on the date of such deposit;Principal Indebtedness to and including the Defeasance Release Date,
(d) Borrower shall pay to Lender all reasonable out-of-pocket fees and expenses associated with the Company shall have delivered Full Defeasance or Partial Defeasance, as applicable (including, without limitation, fees of Rating Agencies and accountants, and fees incurred in connection with the delivery of opinion letters related to such Full Defeasance or Partial Defeasance, as applicable), reasonable fees and out-of-pocket costs of any loan servicer (if any) in connection with the Trustee either (x) a ruling directed to Full Defeasance or Partial Defeasance, as applicable, and all other sums then due and payable under the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; andLoan Documents,
(e) the Company has delivered Borrower shall either deposit with Lender an amount equal to the Trustee an Officers’ Certificate and an Opinion Defeasance Deposit, or, at Lender’s request, deliver to Lender the Defeasance Collateral. In connection with the foregoing, Borrower appoints Lender as Borrower’s agent for the purpose of Counsel, in each case stating that all conditions precedent provided for herein relating applying the Defeasance Deposit to purchase the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.Defeasance Collateral,
Appears in 2 contracts
Sources: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Defeasance. Except as provided belowIf there is paid or caused to be paid from the Bond Fund to the Holders of all of the Bonds secured hereby the principal of, premium, if any, and interest which is and shall thereafter become due and payable thereon, together with all other sums payable hereunder by the Authority, then and in that case the rights, title and interest of the Trustee hereunder shall cease and terminate, and such Bonds shall cease to be entitled to any lien, benefit or security under this Agreement. In such event, subject to the rights of the Letter of Credit Issuer under the Security Agreements and the Reimbursement Agreement, the Company will Trustee shall transfer and assign to the Borrower or the Letter of Credit Issuer, as directed by the Letter of Credit Issuer, all property then held by the Trustee, shall deliver the Letter of Credit to the Letter of Credit Issuer, shall execute such documents as may be reasonably required by the Authority or the Borrower to evidence such transfer and assignment and shall turn over to the Borrower or the Letter of Credit Issuer, as directed by the Letter of Credit Issuer, any surplus in the Bond Fund and the Debt Service Reserve Fund and any balance remaining in the Construction Fund. If the Authority shall pay or cause to be paid to the Holders of less than all of the outstanding Bonds the principal of, premium, if any, and interest which is and shall thereafter become due and payable upon such Bonds, such Bonds, or portions thereof, shall cease to be entitled to any lien, benefit or security under this Agreement. ---Any outstanding Bond, or any portion thereof in the principal amount of FIVE THOUSAND DOLLARS ($5,000) or any multiple thereof, shall be deemed to have been paid within the meaning and with the Company and effect expressed in this Section 1301 when the Guarantor will be discharged from any and all obligations in respect whole amount of the Securities of any series and the Guarantee thereofprincipal of, premium, if any, and interest on such Bond shall have been paid or when: (a) in case said Bonds or portions thereof have been selected for redemption in accordance with Section 301 hereof prior to their maturity, the Borrower shall have given to the Trustee irrevocable instructions to give in accordance with the provisions of this Indenture will no longer be in effect with respect to the Securities Section 302 hereof notice of redemption of such series and the Guarantee thereof Bonds, or portions thereof; (and the Trustee, at the expense of the Company and the Guarantor, b) there shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust be on deposit with the Trustee as trust funds solely for Eligible Moneys or Defeasance Obligations which shall not contain provisions permitting the benefit redemption thereof other than at the option of the Holders holder, the principal of and the Securities of such seriesinterest on which when due, for payment of and without any reinvestment thereof, will provide Eligible Moneys which shall be sufficient to pay when due the Principal principal of and interest due and to become due on the Securities of such series, money said Bonds or U.S. Government Obligations portions thereof on or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered prior to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes redemption date or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)date thereof, as the case may be;
; (c) in the event said Bonds, or portions thereof, do not mature and are not to be redeemed within the next succeeding sixty (60) days, the Borrower shall have given the Trustee irrevocable instructions to give notice, as soon as practicable in the same manner as a notice of redemption is given pursuant to Section 302 hereof, to the Holders of said Bonds, or portions thereof, stating that the deposit of Eligible Moneys or Defeasance Obligations required by clause (b) of this paragraph has been made with the trustee and that said Bonds are deemed to have been paid in accordance with this Section and stating such deposit will not result in a breach maturity or violation ofredemption date upon which moneys are to be available for the payment of the principal of and interest. on said Bonds, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
portions thereof; (d) the Company Trustee shall have delivered received an opinion of counsel experienced in bankruptcy matters, satisfactory to the Trustee either (x) a ruling directed to Trustee, the Trustee received from Letter of Credit Issuer and the Internal Revenue Service Authority, to the effect that the Holders payment to the Bondholders of the Securities moneys described in clause (b) of such series will this paragraph would not recognize income, gain or loss for federal income tax purposes constitute a transfer which may be avoided as a result preference under any provision of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and United States Bankruptcy Code in the same manner and at event of an Act of Bankruptcy; (e) the same times as would Trustee shall have been the case if such deposit and defeasance had not occurred or (y) received an Opinion of Counsel experienced in federal tax matters satisfactory to the same Trustee and the Authority, to the effect as that the ruling deposit of the moneys or Defeasance Obligations described in clause (xb) aboveof this paragraph would not adversely affect the treatment of the interest received by Bondholders as income from sources within the Commonwealth for purposes of the Code or otherwise would not result in an Event of Taxability (assuming continuing compliance by the Borrower with the source of income covenants set forth in the Loan Agreement) and; and
(ef) all outstanding obligations under the Company has delivered Reimbursement Agreement shall have been paid in full. Neither the moneys nor the Defeasance Obligations deposited with the Trustee pursuant to this Section nor principal or interest payments on any such obligations shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of and interest on said Bonds, or portions thereof. If the Defeasance Obligations deposited with the Trustee pursuant to this Section are purchased with proceeds of refunding bonds issued by the Authority, such Defeasance Obligations must meet the requirements of the Act. If payment of less than all of the Bonds is to be provided for in the manner and with the effect expressed in this Section, the Trustee shall select such Bonds, or portions thereof, in the manner specified in Section 301 hereof for selection for redemption of less than all of the Bonds in the principal amounts designated to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to by the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveBorrower.
Appears in 2 contracts
Sources: Trust Agreement (Maxxam Inc), Trust Agreement (Maxxam Inc)
Defeasance. Except as provided below(a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the Release Date to voluntarily defease the entire Loan and obtain a release of the lien of the Mortgage by providing Lender with the Defeasance Collateral (hereinafter, a "Defeasance Event") upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (or such shorter period of time permitted by Lender in its sole discretion) specifying a date (the "Defeasance Date") on which the Defeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Defeasance Date and (B) all other sums then due and payable under the Note, this Agreement, the Company will be deemed to have paid Mortgage and the Company other Loan Documents;
(iii) Borrower shall deposit the Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the Guarantor will be discharged from any provisions of Sections 2.5.2 and all obligations 2.5.3 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Securities of any series Defeasance Collateral Account and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beDefeasance Collateral;
(bv) Borrower shall deliver to Lender opinions of counsel for Borrower that are standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (A) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Defeasance Collateral, (B) if a Securitization has occurred, the REMIC Trust formed pursuant to such deposit Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of a Defeasance Event pursuant to this Section 2.5.1, (C) the Defeasance Event will not result in a breach deemed exchange for purposes of the Code and will not adversely affect the status of the Note as indebtedness for federal income tax purposes, (D) delivery of the Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or violation of, or constitute applicable state law and (E) a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default non-consolidation opinion with respect to the Securities of such series shall have occurred and be continuing on the date of such depositSuccessor Borrower;
(dvi) the Company Borrower shall have delivered deliver to Lender a Rating Agency Confirmation as to the Trustee either Defeasance Event;
(xvii) a ruling directed to the Trustee received from the Internal Revenue Service to the effect Borrower shall deliver an Officer's Certificate certifying that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under requirements set forth in this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would 2.5.1
(a) have been satisfied;
(viii) Borrower shall deliver a certificate of a "big five" or other nationally recognized public accounting firm acceptable to Lender certifying that the case if Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(ix) Borrower shall deliver such deposit other certificates, opinions, documents and defeasance had not occurred or (y) an Opinion of Counsel to the same effect instruments as the ruling described in clause (x) aboveRating Agencies may require; and
(ex) Borrower shall pay all reasonable out-of-pocket costs and expenses of Lender incurred in connection with the Company Defeasance Event, including Lender's reasonable out-of-pocket attorneys' fees and expenses and Rating Agency fees and expenses.
(b) If Borrower has delivered elected to defease the Note and the requirements of this Section 2.5.1 have been satisfied, the Property shall be released from the Lien of the Mortgage and the Defeasance Collateral pledged pursuant to the Trustee an Officers’ Certificate and an Opinion Security Agreement shall be the sole source of Counselcollateral securing the Note. In connection with the release of the Lien of the Mortgage, in each case stating that all conditions precedent provided for herein relating Borrower shall submit to Lender, not less than thirty (30) days prior to the defeasance contemplated Defeasance Date (or such shorter time as is acceptable to Lender in its sole discretion), an assignment or release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in New York, New York and that contains standard provisions protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer's Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage, including Lender's reasonable out-of-pocket attorneys' fees. Except as set forth in Section 2.4 and this Section 9.02 2.5, no repayment, prepayment or defeasance of all or any portion of the Securities of such series have been complied with. The obligations Note shall cause, give rise to a right to require, or otherwise result in, the release of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations lien of the Company and Mortgage on the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveProperty.
Appears in 2 contracts
Sources: Loan Agreement (Reckson Associates Realty Corp), Loan Agreement (Reckson Operating Partnership Lp)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from (a) Notwithstanding any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect Article 2 to the Securities contrary, at any time following a REMIC Prohibition Period, Borrower may cause the release of the Property from the Lien of the Mortgage and the other Loan Documents upon the satisfaction of the following conditions:
(i) no Event of Default shall have occurred and be continuing;
(ii) not less than thirty (30) (but not more than ninety (90)) days prior written notice shall be given to Lender specifying a date on which the Defeasance Collateral is to be delivered (the "Release Date"); provided, however, that Borrower shall have the right to cancel or extend (by no more than thirty (30) days) such notice by providing Lender with notice of cancellation or extension not less than ten (10) days prior to the scheduled Release Date, provided that Borrower shall pay all of Lender's costs and expenses incurred as a result of such series cancellation or extension;
(iii) all sums due under this Agreement, the Note and under the Guarantee thereof other Loan Documents up to the Release Date, including, without limitation, all fees, costs and expenses incurred by Lender and its agents in connection with such release (including, without limitation, reasonable legal fees and expenses for the review and preparation of the Defeasance Security Agreement and of the other materials described in Section 2.7(a)(iv) below and any related documentation, and any servicing fees, Rating Agency fees or other costs related to such release), shall be paid in full on or prior to the Release Date;
(iv) Borrower shall deliver to Lender on or prior to the Release Date:
(A) a pledge and security agreement, in form and substance which would be satisfactory to a prudent lender, creating a first priority security interest in favor of Lender in the Defeasance Collateral (the "Defeasance Security Agreement");
(B) direct non-callable obligations of the United States of America or, to the extent satisfying Rating Agency criteria, other obligations which are "government securities" within the meaning of Section 2(a)(16) of the Investment Company Act of 1940 (and in connection therewith, Borrower hereby appoints Lender as its agent and attorney in fact for the purpose of purchasing the same) that provide for payments on a Business Day prior and as close as possible to each successive Payment Date (and the TrusteeMaturity Date) after the Release Date, at with each such payment being equal to or greater than the expense amount of the Company corresponding Monthly Payment Amount required to be paid under this Agreement and the GuarantorNote and all amounts due on the Maturity Date (the "Defeasance Collateral"), shall execute proper duly endorsed by the holder thereof as directed by Lender or accompanied by a written instrument of transfer in form and substance which would be satisfactory to a prudent lender (including, without limitation, such certificates, documents and instruments acknowledging as may be required by the same); provided that the following conditions shall have been satisfied:
(a) the Company depository institution holding such securities or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantorissuer thereof, as the case may be, to effectuate book entry transfers and pledges through the book entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement the first priority security interest therein in favor of Lender in conformity with all applicable state and federal laws governing granting of such security interests;
(C) a certificate of Borrower certifying that all of the requirements set forth in this Section 2.7(a) have been satisfied;
(D) one or more opinions of counsel for Borrower in form and substance and delivered by counsel which would be satisfactory to a prudent lender stating, among other things, that (1) Lender has a perfected first priority security interest in the Defeasance Collateral and that the Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, and (2) the release of the lien of the Mortgage and the pledge of Defeasance Collateral will not directly or indirectly result in or cause any REMIC Trust that holds the Note to fail to maintain its status as a party or REMIC Trust;
(E) a certificate in form and scope which would be satisfactory to a prudent lender from an independent certified public accountant acceptable to Lender certifying that the Defeasance Collateral will generate amounts sufficient to make all payments of principal and interest due under this Agreement and the Note (including the scheduled outstanding principal balance of the Loan due on the Maturity Date);
(F) such other certificates, opinions, documents and instruments as a prudent lender would require; and
(G) in the event the Loan is held by a REMIC Trust and if required by Lender, Lender has obtained a Rating Agency Confirmation.
(b) Upon compliance with the requirements of Section 2.7(a), the Property shall be released from the Lien of the Mortgage and the other Loan Documents, and the Defeasance Collateral shall constitute collateral which it is bound;shall secure the Note and all other obligations under the Loan Documents. Lender shall, at Borrower's expense, execute and deliver any agreements reasonably requested by Borrower to release the lien of the Mortgage and the other Loan Documents from the Property.
(c) no Default with respect As a condition to the Securities release of the Property in accordance with Section 2.7, Borrower shall assign all its obligations and rights under this Agreement and the Note, together with the pledged Defeasance Collateral, to a successor single purpose entity designated and approved by Lender in its sole and absolute discretion ("Successor Borrower"). Any Successor Borrower shall either be newly-formed at the time of the Defeasance or shall be unaffiliated with the Borrower. Lender's right to designate and approve the Successor Borrower shall, at the sole option of Bank of America, N.A., be exercised by Bank of America, N.A. and shall be retained by Bank of America, N.A. (or any successor or assign pursuant to an assignment of such series retained rights separate and apart from the transfer or Securitization of all or any portion of the Loan), notwithstanding any transfer or Securitization of all or any portion of the Loan. Successor Borrower shall have occurred execute an assignment and assumption agreement in form and substance which would be continuing on satisfactory to a prudent lender pursuant to which it shall assume Borrower's obligations under this Agreement, the date Note and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (i) deliver to Lender one or more opinions of counsel in form and substance and delivered by counsel which would be satisfactory to a prudent lender stating, among other things, that such deposit;
(d) assignment and assumption agreement is enforceable against Borrower and the Company shall have delivered Successor Borrower in accordance with its terms and that this Agreement, the Note, the Defeasance Security Agreement and the other Loan Documents, as so assigned and assumed, are enforceable against the Successor Borrower in accordance with their respective terms, and opining to such other matters relating to Successor Borrower and its organizational structure as Lender may require, including, if required by Lender, a New Non-Consolidation Opinion from counsel to the Trustee either Successor Borrower, and (xii) a ruling directed pay all fees, costs and expenses incurred by Lender or its agents and Successor Borrower in connection with such assignment and assumption (including, without limitation, reasonable legal fees and expenses and for the review of the proposed transferee and the preparation of the assignment and assumption agreement and related certificates, documents and instruments and any fees payable to any Rating Agencies and their counsel in connection with the issuance of the confirmation referred to above, and excluding any assumption fee which may otherwise be due pursuant to the Trustee received from the Internal Revenue Service to the effect that the Holders other Loan Documents). Upon such assignment and assumption, Borrower shall be relieved of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge its obligations under this Section 9.02 Agreement and will be subject to federal income tax on the same amount Note, the other Loan Documents and the Defeasance Security Agreement arising from and after the Release Date, except as expressly set forth in the same manner assignment and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveassumption agreement.
Appears in 2 contracts
Sources: Loan Agreement (MVP REIT, Inc.), Loan Agreement (MVP REIT II, Inc.)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company When principal or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient redemption price (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;) of, and interest on, any Bonds issued hereunder has been paid, or provision shall have been made for payment of the same, together with the compensation of the Trustee and all other sums payable hereunder by the Corporation and the County, the right, title and interest of the Trustee with respect to such Bonds shall thereupon cease and the Trustee shall release this Trust Agreement and shall execute such documents to evidence such releases as may be reasonably required by the Corporation and shall turn over to the Corporation or to such person, body or authority as may be entitled to receive the same all balances then held by it hereunder; provided, however, that the County shall in all events remain liable under the Facilities Agreement (subject to Section 4.7 thereof) until all amounts due and owing thereunder have been paid or provision shall have been made for payment of the same.
(b) Provision for the payment of the Bonds shall be deemed to have been made when the Trustee holds, in an irrevocable deposit, under the provisions hereof (i) cash in an amount sufficient to make all payments specified above with respect to all of such Bonds, or (ii) Defeasance Obligations maturing on or before the date or dates when the payments specified above shall become due, the principal amount of which and the interest thereon, when due, is or will be, in the aggregate, sufficient without reinvestment to make all payments specified above with respect to such Bonds, or (iii) any combination of such cash and such Defeasance Obligations the amounts of which and interest thereon, when due, are or will be, in the aggregate, sufficient without reinvestment to make all payments specified above on such Bonds; provided that, to the extent such deposit will does not result in consist of uninvested cash, the Trustee shall have received a breach report of an independent accountant or violation of, or constitute a default under, this Indenture or firm of accountants selected by the Corporation verifying that the computations of the amount available from Defeasance Obligations when added to any other material agreement or instrument cash available shall be sufficient to which meet the Company or the Guarantor, as the case may be, is a party or by which it is bound;requirements hereof.
(c) no Default Neither the obligations nor the moneys deposited with respect the Trustee pursuant to this Section 9.1 shall be withdrawn or used for any purpose other than, and shall be segregated and held in trust for, the Securities payment of such series shall have occurred the principal or redemption price of, and be continuing on the date of such deposit;interest on, said Bonds.
(d) Whenever moneys or obligations shall be deposited with the Company shall have delivered Trustee for the payment or redemption of Bonds more than 60 days prior to the Trustee either (x) a ruling directed date that such Bonds are to mature or be redeemed, the Trustee received from shall mail a notice stating that such moneys or obligations have been deposited and identifying the Internal Revenue Service Bonds for the payment of which such moneys or obligations are being held, to the effect that the Holders of Bonds for the Securities payment of which such series will not recognize income, gain moneys or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; andobligations are being held.
(e) the Company has Prior to any defeasance becoming effective under this Trust Agreement, there shall have been delivered to the Trustee an Officers’ Certificate and an Opinion opinion of Bond Counsel, in each case stating that all conditions precedent provided for herein relating satisfactory to the Trustee, to the effect that interest on the Bonds being paid by such defeasance contemplated will not become subject to federal income taxation by this Section 9.02 of the Securities reason of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivedefeasance.
Appears in 2 contracts
Sources: Trust Agreement, Trust Agreement
Defeasance. Except as provided below, (a) If HRTAC shall pay or provide for the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect payment of the Securities of entire indebtedness on particular Bonds in any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense one or more of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedways:
(a1) by paying or causing to be paid the Company or principal of and premium, if any, and interest on such Bonds, as and when the Guarantor has irrevocably deposited in trust same shall become due and payable;
(2) by delivering such Bonds to the Trustee for cancellation; or
(3) by depositing with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money (or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered an escrow agent acceptable to the Trustee), in trust, cash and/or Defeasance Obligations in such amount as will, together with the income or increment to accrue on such Defeasance Obligations (the “Defeasance Amount”), be fully sufficient to pay or redeem (when redeemable) and discharge the indebtedness on such Bonds at or before their respective maturity dates, without consideration of any reinvestment of the Defeasance Amount, as a Verification Agent shall verify to the Trustee’s satisfaction;
(4) and after if HRTAC shall also pay or provide for the payment of all federalother sums payable hereunder by HRTAC with respect to such Bonds, state and local taxes or other charges and assessments in respect thereof payable by the Trusteeand, if such Bonds are to pay and discharge the Principal of and accrued interest on the outstanding Securities be redeemed before their maturity, notice of such series to maturity redemption shall have been given as provided in Article IV of this Master Indenture (or earlier redemption (irrevocably provided for under arrangements the corresponding provisions of the Related Series Supplements) or provisions satisfactory to the Trustee)Trustee shall have been made for the giving of such notice, such Bonds shall cease to be entitled to any lien, benefit or security under this Master Indenture except as the case may be;provided in subsection (d) below.
(b) HRTAC may at any time surrender to the Trustee for cancellation any Bonds previously authenticated and delivered that HRTAC may have acquired in any manner whatsoever, and such deposit will not result Bonds, upon such surrender and cancellation, shall be deemed to be paid and retired as provided in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;Section.
(c) no Default Upon such defeasance all rights of HRTAC, including its right to provide for optional redemption of Bonds on dates other than planned pursuant to such defeasance, shall cease unless specifically retained by filing a written notification thereof with respect the Trustee on or prior to the Securities of such series shall have occurred and be continuing on date the date of such deposit;Defeasance Amount is deposited with the Trustee or escrow agent.
(d) the Company When a Bond is deemed to be paid hereunder, as aforesaid, it shall have delivered no longer be secured by or entitled to the Trustee either benefits of this Master Indenture, except for the purposes of any such payment (x) a ruling directed to the Trustee received exclusion of all other Owners) from the Internal Revenue Service to Defeasance Amount and except for the effect that provisions of this Section, Articles III and IV (and the Holders corresponding sections of the Securities Series Supplements) and Section 6.1 of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveMaster Indenture.
Appears in 2 contracts
Sources: Master Indenture of Trust, Master Indenture of Trust
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and the Company and the Guarantor will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Covenant Defeasance”);
(a) the Company or Issuer shall have irrevocably pledged to the Guarantor has irrevocably deposited in trust with the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government obligations accepted by the Securities of Bond Trustee (the “Defeasance Pledge”) in such series, amounts as will be sufficient for the payment of the Principal principal (including premium payable upon exercise of a Put Option) and interest on the Securities of such series, money Outstanding Bonds to Maturity Date (or U.S. Government Obligations or redemption upon a combination thereof sufficient (unless such funds consist solely of money, in the opinion exercise of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trusteenotified Put Option), as the case may be;
(b) such deposit will not result in the Issuer shall, if required by the Bond Trustee, provide a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect legal opinion reasonable acceptable to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Bond Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series Bondholders will not recognize income, gain or loss for federal income tax purposes (hereunder US federal or Norwegian, if applicable) as a result of such discharge under this Section 9.02 the Defeasance Pledge and Covenant Defeasance, and will be subject to federal such income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance the Defeasance Pledge had not occurred;
(c) no Event of Default shall have occurred and be continuing on the date of establishment of the Defeasance Pledge, or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 181st day after the date of establishment of the pledge;
(yd) an Opinion neither the Defeasance Pledge nor the Covenant Defeasance results in a breach or violation of Counsel to any material agreement or instrument binding upon the same effect as Issuer, or the ruling described in clause (x) above; andarticles of association or other corporate documents governing the Issuer;
(e) the Company has Issuer shall have delivered to the Bond Trustee an Officers’ Certificate a certificate signed by its Chief Executive Officer that the Defeasance Pledge was not made by the Issuer with the intent of preferring the Bondholders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(f) the Issuer shall have delivered to the Bond Trustee any certificate or legal opinion reasonably required regarding the Covenant Defeasance or Defeasance Pledge (including certificate from its Chief Executive Officer and an Opinion of Counsel, in each case stating a legal opinion from its legal counsel) to the effect that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series Covenant Defeasance have been complied with. The obligations ; and that the Defeasance Pledge (i) will not be subject to any rights of creditors of the Company Issuer, (ii) will constitutes a valid, perfected and enforceable security interest in favour of the Bond Trustee for the benefit of the Bondholders, and (iii) will, after the 181st day following the establishment, the funds and assets so pledged will not be subject to the effects of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally under the laws of the jurisdiction where the Defeasance Pledge was established and the Guarantor corporate domicile of the Issuer.
18.2.2 Upon the exercise by the Issuer of its option under Clause 18.2.1;
(a) the Issuer shall be released from their obligations under all provisions in Sections 2.02 through 2.12Clause 13, 4.02except 13.2.1 (a), 8.07(e), 8.08(h) and (i).
(b) the Issuer shall not (and shall ensure that all Group Companies shall not) take any actions that may cause the value of the security interest created by this Covenant Defeasance to be reduced, 9.04 and 9.05shall at the request of the Bond Trustee execute, or cause to be executed, such further documentation and perform such other acts as applicablethe Bond Trustee may reasonably require in order for such security interests to remain valid, enforceable and perfected by the Bond Trustee for the account of the Bondholders;
(c) save as provided for in (a) above, all provisions of the Bond Agreement shall remain fully in force without any modifications.
18.2.3 All moneys amount covered by the Defeasance Pledge shall be applied by the Bond Trustee, in accordance with respect the provisions of this Bond Agreement, to the Securities payment to the Bondholders of such series all sums due to them under this Bond Agreement on the due date thereof. Any excess funds not required for the payment of principal, premium and interest to the Guarantee thereof Bondholders (including any expenses, fees etc. due to the Bond Trustee hereunder) shall survive until such Securities are no longer outstanding. Thereafter, only be returned to the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveIssuer.
Appears in 2 contracts
Sources: Bond Agreement, Bond Agreement (Pacific Drilling S.A.)
Defeasance. Except as provided The Corporation may, at its option and at any time, upon delivery to the Trustee of a Certified Resolution authorizing such action, terminate the obligations (subject to the exceptions set forth below) of the Corporation with respect to all outstanding Debt Securities and any coupons appertaining thereto and any Debt Securities Guarantee which may have been given in respect of any series of outstanding Debt Securities and the Corporation shall be deemed to have been discharged from its obligations with respect to the outstanding Debt Securities and any coupons appertaining thereto, and any such Debt Securities Guarantee shall terminate, on the Company will date the conditions set forth in Section 13.3 are satisfied (hereinafter "defeasance"). For this purpose, such defeasance means that the Corporation shall be deemed to have paid and discharged the Company entire indebtedness represented by all then outstanding Debt Securities and any coupons appertaining thereto, which shall thereafter be deemed to be "outstanding" only for the Guarantor will be discharged from any and all obligations in respect purposes of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer referred to in clauses (1) through (4) below, and to have satisfied all of its other obligations under such Debt Securities and any coupons appertaining thereto and this Indenture insofar as such Debt Securities and any coupons appertaining thereto are concerned and also means that any such Debt Securities Guarantee which may have been given in respect of the outstanding Debt Securities shall be in effect with respect to the Securities of such series and the Guarantee thereof terminated (and the Trustee, at the expense of the Company and the GuarantorCorporation, shall execute proper instruments acknowledging the same); provided that , except for the following conditions which shall have been satisfied:
survive until otherwise terminated or discharged hereunder: (a1) the Company or rights of holders of such outstanding Debt Securities and any coupons appertaining thereto to receive, solely from the Guarantor has irrevocably deposited trust fund described in trust Section 13.3 and as more fully set forth in such Section and Section 13.4, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, payable with respect to, such Debt Securities and any coupons appertaining thereto when such payments are due, (2) the obligation of the Corporation to pay Additional Amounts in respect of the Debt Securities pursuant to Section 8.1, (3) the rights, powers, trusts, duties and immunities of the Trustee as trust funds solely for hereunder, and (4) the benefit provisions of the Holders of the Securities of such seriesSections 1.5, for payment of the Principal of and interest on the Securities of such series1.6, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money2.7, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal2.8, state and local taxes or other charges and assessments in respect thereof payable by the Trustee2.14, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee5.1(i), as 7.4, 7.5, 8.3 and 11.4 and of this Article 13. Subject to compliance with this Article 13, the case Corporation may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, exercise its option under this Indenture or any other material agreement or instrument to which Section 13.1 notwithstanding the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default prior exercise of its option under Section 13.2 with respect to the such Debt Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveany coupons appertaining thereto.
Appears in 2 contracts
Sources: Trust Indenture (Cnooc LTD), Trust Indenture (Nexen Inc)
Defeasance. Except as provided below, or as otherwise specified in an indenture supplemental hereto with regard to any series of Convertible Securities, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Convertible Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Convertible Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Convertible Securities of such series, for payment of the Principal of and interest on the Convertible Securities of such series, money sufficient or U.S. Government Obligations Obligations, which through the payment of principal and interest thereon will be sufficient, or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Convertible Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is boundbound or be in contravention of Articles 11 and 12 hereof or any indenture supplemental hereto contemplated by such Articles or any term or provision of any agreement creating or evidencing indebtedness ranking senior to the indebtedness evidenced hereby;
(c) no Default Default, Event of Default, any other default or any Covenant Enforcement Event with respect to the Convertible Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Convertible Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Convertible Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Convertible Securities of such series and the Guarantee thereof shall survive until such Convertible Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 8.07, 9.04 and 9.05, as applicable, shall survive.
Appears in 2 contracts
Sources: Indenture (Credit Suisse Group (Guernsey) III LTD), Indenture (Credit Suisse Group (Guernsey) III LTD)
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and the Company and the Guarantor will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Security and Covenant Defeasance”):
(a) the Company or Issuer shall have irrevocably pledged to the Guarantor has irrevocably deposited in trust with the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government bonds accepted by the Securities of Bond Trustee (the “Defeasance Pledge”) in such series, amounts as will be sufficient for the payment of the Principal principal (including if applicable premium payable upon exercise of a Call Option) and interest on the Securities of such series, money Outstanding Bonds to Maturity Date (or U.S. Government Obligations or redemption upon a combination thereof sufficient (unless such funds consist solely of money, in the opinion exercise of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to notified Call Option) or any other amount agreed between the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beParties;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such depositestablishment of the Defeasance Pledge, or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time during any hardening period applicable to the Defeasance Pledge (or the relevant period for non-Norwegian companies) or any other date agreed between the Parties;
(c) if the Bonds are secured, the Defeasance Pledge shall be considered as a replacement of the security established prior to the Defeasance Pledge;
(d) the Company Issuer shall have delivered to the Bond Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect certificate signed by its Chief Executive Officer that the Holders Defeasance Pledge was not made by the Issuer with the intent of preferring the Bondholders over any other creditors of the Securities Issuer or with the intent of such series will not recognize incomedefeating, gain hindering, delaying or loss for federal income tax purposes as a result defrauding any other creditors of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred Issuer or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveothers; and
(e) the Company has Issuer shall have delivered to the Bond Trustee an Officers’ Certificate any certificate or legal opinion reasonably required by the Bond Trustee regarding the Security and an Opinion Covenant Defeasance or Defeasance Pledge, including any certificate or legal opinion on (i) the compliance of Counselthe conditions of the Security and Covenant Defeasance, (ii) that the Defeasance Pledge constitutes a valid, perfected and enforceable security in favour of the Bond Trustee for the benefit of the Bondholders which will not be subject to any rights of creditors of the Issuer or any bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally under the laws of the jurisdiction where the Defeasance Pledge was established and the corporate domicile of the Issuer, (iii) any relevant tax issues concerning the Bondholders, (iv) any valuation of any assets or (vii) any other certificate or opinion regarding the Security and Covenant Defeasance or the Defeasance Pledge.
18.2.2 Upon the exercise by the Issuer of its option under Clause 18.2.1:
(a) the Issuer shall be released from their obligations under all provisions in Clause 13, except Clauses 13.2.1(a), (e), (h), (i) and (j), or as otherwise agreed;
(b) the Issuer shall not (and shall ensure that all Group Companies shall not) take any actions that may cause the value of the security created by this Security and Covenant Defeasance to be reduced, and shall at the request of the Bond Trustee execute, or cause to be executed, such further documentation and perform such other acts as the Bond Trustee may reasonably require in order for the security to remain valid, enforceable and perfected by the Bond Trustee for the account of the Bondholders;
(c) any amount standing to the credit of the Escrow Account shall be released; and
(d) all other provisions of this Bond Agreement (except (a) – (c) above) shall remain fully in force without any modifications, or as otherwise agreed.
18.2.3 All amounts owed by the Issuer hereunder covered by the Defeasance Pledge shall be applied by the Bond Trustee, in each case stating that all conditions precedent provided for herein relating accordance with the provisions of this Bond Agreement, against payment to the defeasance contemplated by Bondholders of all sums due to them under this Section 9.02 Bond Agreement on the due date thereof. Any excess funds not required for the payment of the Securities of such series have been complied with. The obligations of the Company principal, premium and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect interest to the Securities of such series and Bondholders (including any expenses, fees etc. due to the Guarantee thereof Bond Trustee hereunder) shall survive until such Securities are no longer outstanding. Thereafter, only be returned to the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveIssuer.
Appears in 2 contracts
Sources: Bond Agreement (Navigator Holdings Ltd.), Bond Agreement (Navigator Holdings Ltd.)
Defeasance. Except as provided below(a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the Release Date and prior to the Maturity Date to voluntarily defease the entire Loan and obtain a release of the lien of the Security Instrument by providing Lender with the Total Defeasance Collateral (hereinafter, a “Total Defeasance Event”), subject to the satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which the Total Defeasance Event is to occur;
(ii) Unless otherwise agreed to in writing by Lender, Borrower shall pay to Lender (A) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the next occurring Monthly Payment Date, unless the Total Defeasance Collateral shall be sufficient to make such payments, together with all other payments required to be made hereunder); (B) all other sums, if any, due and payable under the Note, this Agreement, the Company will be deemed to have paid Security Instrument and the Company other Loan Documents through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (C) all escrow, closing, recording, legal, Rating Agency and other reasonable fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Defeasance Collateral and the Guarantor will be discharged from preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (D) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Total Defeasance Event;
(iii) Borrower shall deposit the Total Defeasance Collateral into the Defeasance Collateral Account and all obligations otherwise comply with the provisions of Section 2.8(d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Securities of any series Defeasance Collateral Account and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beTotal Defeasance Collateral;
(bv) such deposit Borrower shall deliver to Lender (i) an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (A) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral; (B) the Total Defeasance Event will not result in a breach deemed exchange for purposes of the IRS Code and will not adversely affect the status of the Note as indebtedness for federal income tax purposes; and (C) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or violation of, or constitute applicable state law; (ii) a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default REMIC Opinion with respect to the Securities of such series shall have occurred Total Defeasance Event; and be continuing on the date of such deposit(iii) a New Non-Consolidation Opinion with respect to Successor Borrower;
(dvi) the Company Borrower shall have delivered deliver to Lender a Rating Agency Confirmation as to the Trustee either Total Defeasance Event;
(xvii) a ruling directed to the Trustee received from the Internal Revenue Service to the effect Borrower shall deliver an Officer’s Certificate certifying that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under requirements set forth in this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would 2.8 have been satisfied;
(viii) Borrower shall deliver a certificate of a nationally recognized public accounting firm acceptable to Lender certifying that the case if such deposit and defeasance had not occurred Total Defeasance Collateral will generate monthly amounts equal to or (y) an Opinion of Counsel to greater than the same effect as the ruling described in clause (x) aboveScheduled Defeasance Payments; and
(eix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request.
(b) If Borrower has elected to defease the Company has delivered entire Loan and the requirements of this Section 2.8 have been satisfied, the Property shall be released from the lien of the Security Instrument and the Total Defeasance Collateral pledged pursuant to the Trustee an Officers’ Certificate and an Opinion Security Agreement shall be the sole source of Counselcollateral securing the Loan. In connection with the release of the lien, in each case stating that all conditions precedent provided for herein relating Borrower shall submit to Lender, not less than fifteen (15) days prior to the defeasance contemplated Total Defeasance Date (or such shorter time as is acceptable to Lender in its sole discretion), a release of lien (and related Loan Documents) for execution by this Section 9.02 Lender. Such release shall be in a form appropriate in the jurisdiction in which the Property is located and that contains standard provisions protecting the rights of the Securities releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of such series have been complied withthis Agreement. The obligations Except as set forth in this Article 2, no repayment, prepayment or defeasance of all or any portion of the Company and Loan shall cause, give rise to a right to require, or otherwise result in, the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations release of the Company and lien of the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveSecurity Instrument.
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Defeasance. Except Notwithstanding any provision of this Mortgage to the contrary, at any time after the date which (A) is two (2) years after the “startup day,” within the meaning of Section 860G(a)(9) of the Internal Revenue Code of 1986, as amended from time to time or any successor statute (the “Code”), of a “real estate mortgage investment conduit,” (“REMIC”) within the meaning of Section 860D of the Code, that holds the Note and this Mortgage or (B) four (4) years after the date hereof, whichever shall earlier occur, and provided belowno Event of Default has occurred, Mortgagor may cause the release of the Mortgaged Property from the lien of this Mortgage and the other Loan Documents upon the satisfaction of the following conditions:
A. not less than sixty (60) days prior written notice shall be given to Mortgagee specifying a Payment Date (the “Release Date”) on which the Defeasance Collateral is to be delivered;
B. all accrued and unpaid interest and all other sums due under this Mortgage, the Company will be deemed Note and under the other Loan Documents up to have paid the Release Date, including, without limitation, all costs and expenses incurred by Mortgagee or its agents in connection with such release (including, without limitation, the review of the proposed Defeasance Collateral and the Company and the Guarantor will be discharged from any and all obligations in respect preparation of the Securities of any series Defeasance Security Agreement (as hereinafter defined) and the Guarantee thereofrelated documentation), and the provisions of this Indenture will no longer shall be paid in effect with respect full on or prior to the Securities of such series and Release Date; and
C. Mortgagor shall deliver to Mortgagee on or prior to the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedRelease Date:
(a1) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of a pledge and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneysecurity agreement, in form and substance satisfactory to Mortgagee in its sole discretion, creating a first priority security interest in favor of Mortgagee in the opinion of a nationally recognized firm of independent public accountants expressed Defeasance Collateral (the “Defeasance Security Agreement”), which shall provide, among other things, that any payments generated by the Defeasance Collateral shall be paid directly to Mortgagee and applied by Mortgagee in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment satisfaction of all federal, state amounts then due and local taxes or other charges payable hereunder and assessments in respect thereof any excess received by Mortgagee from the Defeasance Collateral over the amounts payable by Mortgagor hereunder or under the Trustee, Note shall be refunded to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beMortgagor promptly after each Payment Date;
(b2) direct, non-callable obligations of the United States of America that provide for payments prior, but as close as possible, to all successive Payment Dates occurring after the Release Date, with each such deposit will not result payment being equal to or greater than the amount of the corresponding installment of principal and interest required to be paid under the Note (provided that for all purposes of this Section 12.5(C)(2), all principal, accrued interest and other amounts payable under this Mortgage, the Note and the other Loan Documents shall be due and payable in full on the Maturity Date) (the “Defeasance Collateral”), each of which shall be duly endorsed by the holder thereof as directed by Mortgagee or accompanied by a breach or violation ofwritten instrument of transfer in form and substance satisfactory to Mortgagee in its sole discretion (including, or constitute a default underwithout limitation, this Indenture or any other material agreement or instrument to which such instruments as may be required by the Company depository institution holding such securities or the Guarantorissuer thereof, as the case may be, is a party or by which it is boundto effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement the first priority security interest in the Defeasance Collateral in favor of Mortgagee in conformity with all applicable state and federal laws governing granting of such security interests;
(c3) no Default with respect to a certificate of Mortgagor certifying that all of the Securities of such series shall requirements set forth in this Section 12.5 have occurred and be continuing on the date of such depositbeen satisfied;
(d4) the Company shall have an opinion of counsel for Mortgagor in form and substance and delivered by counsel satisfactory to the Trustee either Mortgagee in its sole discretion stating, among other things, that (x) Mortgagee has a ruling directed to perfected first priority security interest in the Trustee received from the Internal Revenue Service to the effect Defeasance Collateral and that the Holders of the Securities of such series Defeasance Security Agreement is enforceable against Mortgagor in accordance with its terms and (y) that any trust formed as a REMIC pursuant to a securitization will not recognize income, gain or loss for federal income tax purposes fail to maintain its status as a REMIC as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and defeasance;
(5) in the same manner event the Loan is held by a REMIC, the Mortgagee has received written confirmation from any Rating Agency rating any securities issued in connection with a securitization that substitution of the Defeasance Collateral will not result in a downgrade, withdrawal, or qualification of the ratings then assigned to any of the securities;
(6) a certificate of a public accounting firm reasonably acceptable to Mortgagee certifying that the Defeasance Collateral will generate monthly amounts equal to or greater than the amount of each corresponding installment of principal and at interest required to be paid under the same times as would have been Note for all successive Payment Dates occurring after the case Release Date;
(7) a letter or other written evidence from any applicable Rating Agency that the defeasance will not result in the withdrawal, downgrade or qualification of the ratings assigned to any certificates issued in connection with a securitization of the Mortgaged Property, if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveapplicable; and
(e) 8) such other certificates, documents or instruments as Mortgagee may reasonably require. Upon compliance with the Company has delivered to the Trustee an Officers’ Certificate and an Opinion requirements of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 12.5, the Mortgaged Property shall be released from the lien of this Mortgage and the other Loan Documents, and the Defeasance Collateral shall constitute collateral which shall secure the Note and all other obligations under the Loan Documents. Mortgagee will, at Mortgagor’s expense, execute and deliver any agreements reasonably requested by Mortgagor to release the lien of the Securities of such series have been complied withMortgaged Instrument from the Mortgaged Property. The obligations Upon the release of the Company Mortgaged Property in accordance with this Section 12.5, Mortgagor may assign all its obligations and rights under the Note, together with the pledged Defeasance Collateral, to a successor entity designated by Mortgagor and approved by Mortgagee in its sole discretion. Such successor entity shall execute an assumption agreement in form and substance satisfactory to Mortgagee in its sole discretion pursuant to which it shall assume Mortgagor’s obligations under the Note and the Guarantor Defeasance Security Agreement. As conditions to such assignment and assumption, Mortgagor shall (x) deliver to Mortgagee an opinion of counsel in Sections 2.02 through 2.12form and substance and delivered by counsel satisfactory to Mortgagee in its sole discretion stating, 4.02among other things, 8.07that such assumption agreement is enforceable against Mortgagor and such successor entity in accordance with its terms and that the Note, 8.08, 9.04 the Defeasance Security Agreement and 9.05the other Loan Documents, as applicableso assumed, are enforceable against such successor entity in accordance with respect to their respective terms, (y) pay all costs and expenses incurred by Mortgagee or its agents in connection with such assignment and assumption (including, without limitation, the Securities review of such series the proposed transferee and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations preparation of the Company assumption agreement and related documentation) and (z) deliver to Mortgagee a non-consolidation opinion in form and substance satisfactory to Mortgagee and the Guarantor in Sections 8.07 applicable Rating Agency. Upon such assumption, Mortgagor shall be relieved of its obligations hereunder, under the other Loan Documents and 9.05, as applicable, shall surviveunder the Defeasance Security Agreement.
Appears in 2 contracts
Sources: Mortgage Consolidation and Modification Agreement (American Realty Capital New York Recovery Reit Inc), Mortgage and Security Agreement (American Realty Capital New York Recovery Reit Inc)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from On any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that date on which the following conditions shall have been satisfied:
: (ai) the Company Transferor has deposited (x) into the Principal Funding Account, an amount equal to the outstanding principal balance of the Class A Certificates, which amount shall be invested in Eligible Investments and (y) if such defeasance occurs prior to the Early Amortization Commencement Date, into the Reserve Account an amount equal to or greater than the Guarantor has irrevocably deposited in trust with Class A Covered Amount, as estimated by the Trustee as trust funds solely Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
the deposit to the Principal Funding Account through the Class A Expected Final Payment Date; (dii) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company Transferor has delivered to the Trustee an Officers’ Certificate opinion of counsel to the effect that such deposit and termination of obligations as described below will not result in the Trust being required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and an Opinion opinion of Counselcounsel to the effect that following such deposit none of the Trust, the Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation; (iii) if such defeasance occurs prior to an Early Amortization Commencement Date, the Transferor has delivered to the Trustee a certificate of an officer of the Transferor stating that the Transferor reasonably believes that such deposit and termination of its obligations will not constitute an Early Amortization Event or any event that, with the giving of notice or the lapse of time, would cause an Early Amortization Event or a Series 2003-__ Early Amortization Event to occur; and (iv) the Rating Agency Condition shall have been satisfied; then, the Series 2003-__ Certificates will no longer be entitled to the security interest of the Trust in the Receivables or, except those set forth in clause (i) above, any other Trust assets ("Defeasance"), and the Investor Percentages applicable to the allocation to Series 2003-__ Certificateholders of Collections of Principal Receivables, Finance Charge Receivables and the Defaulted Amount will be reduced to zero; provided, however, that if the Collateral Interest is held by the Transferor or an affiliate of the Transferor on the date the Transferor defeases the Class A Certificates, the Collateral Invested Amount will be reduced to zero. If the Collateral Interest or any portion thereof is not held by the Transferor or an affiliate of the Transferor prior to any such Defeasance the Transferor shall be obligated to satisfy any other conditions to Defeasance as are set forth in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor applicable supplemental agreement as described in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivesubsection 7.3(b).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Target Receivables Corp)
Defeasance. Except as provided below, On the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company Transferor shall have deposited or caused to be deposited (x) in the Guarantor has irrevocably deposited Principal Funding Account, an amount such that the amount on deposit in trust with the Trustee as trust funds solely for Principal Funding Account following such deposit is equal to the benefit sum of (I) the Class A Outstanding Principal Amount, (II) the Class B Outstanding Principal Amount and (III) the Excess Collateral Outstanding Principal Amount (determined on a net basis, after taking into account any Excess Collateral Daily Principal payable to the Transferor on the Defeasance Date pursuant to subsection 4.12(d) of the Holders of the Securities of such seriesAgreement), for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, y) in the opinion of a nationally recognized firm of independent public accountants expressed Accumulation Period Reserve Account, an amount such that the amount on deposit in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, Accumulation Period Reserve Account following such deposit is sufficient to pay and discharge the Principal (without relying on income or gain from reinvestment of and accrued such amount) all remaining scheduled interest payments on all outstanding Series 2000-2 Securities on the outstanding Securities of dates scheduled for such series to maturity or earlier redemption payments in the Agreement; (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ya) an Opinion of Counsel to the same effect that such deposit will not result in the Trust being required to register as an "investment company" within the ruling described meaning of the Investment Company Act of 1940, as amended, (b) an Opinion of Counsel to the effect that following such deposit none of the Trust, the Accumulation Period Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation and (c) a certificate of an officer of the Transferor stating that the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iii) a Ratings Event will not occur, the Series 2000-2 Securities will no longer be entitled to the security interest of the Trustee in the Receivables and, except those set forth in clause (xi) above; and
(e) , other Trust Property and the Company has delivered percentages applicable to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating allocation to the defeasance contemplated by this Series 2000-2 Securityholders of Principal Collections, Finance Charge Collections and Receivables in Defaulted Accounts will be reduced to zero.
Section 9.02 7. Article V of the Securities of such series have been complied withAgreement. The obligations Article V of the Company Agreement shall read in its entirety as follows and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect shall be applicable only to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.Series 2000-2 Securities:
Appears in 1 contract
Sources: Amended and Restated Series 2000 2 Supplement (Metris Master Trust)
Defeasance. Except as provided below, The Securities may be defeased in whole or in part on the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (i) there shall have been deposited (x) in the Principal Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the sum of the outstanding principal amount of the Class A Securities, the outstanding principal amount of the Class B Securities and the outstanding principal amount of the Collateral Interest so defeased, and (y) in the Reserve Account, an amount equal to or greater than the anticipated excess of the Base Rate over the investment earnings on the amount deposited in the Principal Funding Account pursuant to clause (x) of this Section 7.6, as estimated by the Transferor, for the period from the date of such deposit to the Principal Funding Account through the June 2001 Distribution Date; (ii) the Transferor shall have delivered to the Trustee (a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the an opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered counsel to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) effect that such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument the Trust being required to which register as an "investment company" within the meaning of the Investment Company or the GuarantorAct of 1940, as the case may beamended, is a party or by which it is bound;
(cb) no Default with respect to the Securities an opinion of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service counsel to the effect that the Holders following such deposit none of the Securities Trust, the Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that the Transferor reasonably believes that such series deposits will not recognize incomecause a Pay Out Event or any event that, gain with the giving of notice or loss for federal income tax purposes as the lapse of time, would constitute a result of such discharge under this Section 9.02 and will be subject Pay Out Event, to federal income tax on occur; (iii) the same amount and in the same manner and at the same times as would Rating Agency Condition shall have been satisfied in connection with such events; and (iv) the case if such deposit amounts deposited into the Principal Funding Account and defeasance had not occurred or the Reserve Account pursuant to clauses (x) and (y) an Opinion of Counsel this Section 7.6 are proceeds from the issuance of a Series of Investor Securities. If the Securities have been defeased in whole, the Series 1998-2 Securities will no longer be entitled to the same effect as security interest of the ruling described Trust in the Receivables and, except those set forth in clause (xi) above; and
(e) , other Trust assets and the Company has delivered percentages applicable to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating allocation to the defeasance contemplated by this Section 9.02 Series 1998-2 Securityholders of Collections of Principal Receivables, Collections of Finance Charge Receivables and Collections of Defaulted Receivables will be reduced to zero. Upon the satisfaction of the Securities of such series have been complied with. The obligations of foregoing conditions, the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect Class D Invested Amount will be reduced to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivezero.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Partners First Credit Card Master Trust)
Defeasance. Except as provided belowAt any time prior to the Anticipated Repayment Date for any Component then outstanding, the Company will be deemed to Borrowers may defease all Components of the Loan at any time, as of the last day of an Interest Accrual Period, in accordance with the following provisions:
(A) Lender shall have paid received from the Borrowers not less than thirty (30) days’ prior written notice specifying the date proposed for such defeasance and the Company amount which is to be defeased (which amount must represent the aggregate Component Principal Balance of all then outstanding Components of the Loan).
(B) The Borrowers shall also pay to Lender all interest due through and including the Guarantor will be discharged from last day of the Interest Accrual Period during which such defeasance is being made, together with any and all obligations in respect other amounts due and owing pursuant to the terms of the Securities of Loan Documents, including, without limitation, then outstanding Administrative Fees and any series and the Guarantee thereof, and the provisions of this Indenture will no longer be costs incurred in effect connection with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:a defeasance.
(aC) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit No Event of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing continuing.
(D) The Borrowers shall (i) deliver Federal Obligations sufficient to make the Scheduled Defeasance Payments to Lender and (ii) deliver to Lender (1) a security agreement, in form and substance reasonably satisfactory to Lender, creating a first priority lien on the date Federal Obligations purchased by Borrowers in accordance with the terms of this Section 11.3 (the “Security Agreement”); (2) an Officer’s Certificate certifying that the requirements set forth in this Section 11.3 have been satisfied; (3) an opinion of counsel for the Borrowers in form and substance reasonably satisfactory to Lender stating, among other things, that Lender has a first priority perfected security interest in the Federal Obligations; (4) a certificate, in form and substance reasonably satisfactory to Lender from an independent certified public accountant confirming that the requirements of Section 11.3(D)(i) have been satisfied; and (5) such deposit;other certificates, documents, opinions or instruments as Lender may reasonably request.
(dE) the Company Lender shall have received a Rating Agency Confirmation.
(F) If the Borrowers will continue to own any assets other than the Federal Obligations delivered to Lender, the Trustee either Borrowers shall establish or designate a special-purpose bankruptcy-remote successor entity reasonably acceptable to Lender (x) the “Successor Borrowers”), with respect to which a ruling directed substantive non-consolidation opinion satisfactory to Lender has been delivered to Lender and the Borrowers shall transfer and assign to the Trustee received from Successor Borrowers all obligations, rights and duties under the Internal Revenue Service Notes and the Security Agreement, together with the pledged Federal Obligations. The Successor Borrowers shall assume the obligations of the Borrowers under the Notes and the Security Agreement and the Borrowers shall be relieved of their obligations hereunder and thereunder. The Borrowers shall pay Ten and No/100 Dollars ($10.00) to the Successor Borrowers as consideration for assuming such Borrowers obligations.
(G) The Borrower shall deliver an opinion of counsel to the effect that the Holders defeasance will not constitute a “significant modification” of the Securities of such series will not recognize income, gain Loan or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 “deemed exchange” of the Securities of such series have been complied with. The obligations Notes under section 1001 of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveIRC.
Appears in 1 contract
Sources: Loan and Security Agreement (American Tower Corp /Ma/)
Defeasance. Except as provided belowThe Owner Trustee may, at any time, defease the Company will interest of the Indenture Trustee in the Indenture Estate in whole, but not in part, through the deposit with the Defeasance Trustee, in accordance with the provisions of this Section 10.05, of cash and/or Government Obligations; provided, however, that such defeasance shall not be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations applicable in respect of the Securities Series SWA 1995 Trust N397SW-I Certificates. Such deposit shall be made pursuant to a declaration or other appropriate instrument of any series trust satisfactory in form and substance to the Defeasance Trustee and the Guarantee thereofIndenture Trustee; such deposit shall be absolute and irrevocable and the instrument of trust shall expressly provide that the Owner Trustee shall have no further title to or interest in or power to direct the use or application of the cash and/or Government Obligations so deposited or any of the proceeds arising therefrom; such instrument shall state that the trust created thereby and the cash and/or Government Obligations deposited pursuant thereto are for the sole and exclusive benefit of the Holders and shall expressly provide that the Defeasance Trustee shall apply such cash and payments of principal and/or interest on such Government Obligations to, and only to, the punctual payment of the principal and interest on the Certificates as and when such payments become due (such declaration or instrument to contain appropriate provisions for the recording of this transfers of Certificates and the names and addresses of the Holders); and the Owner Trustee shall agree to pay, as the same shall become due and payable, all fees, costs and charges of the Defeasance Trustee under such instrument of trust, including those which may become payable after the date the conditions hereinbelow specified have been met. Upon compliance with the following conditions, and provided, that no Indenture will no longer Event of Default or Indenture Default shall have occurred and be continuing on a date 91 days after the date of the deposit of Government Obligations and/or cash with the Defeasance Trustee as provided in effect Subsection A below, the Owner Trustee's obligations with respect to the Securities Certificates will be discharged and this Indenture shall terminate as provided in Section 10.01:
A. the Owner Trustee shall have deposited with the Defeasance Trustee absolutely and irrevocably (irrespective of such series whether the conditions in Subsections B, C, D and the Guarantee thereof (and the Trustee, at the expense E of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall this Section 10.05 have been satisfied:)
(a1) cash and/or (2) Government Obligations which through the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by in accordance with their terms, without any reinvestment or further investment of the Trusteeprincipal of or interest earned on such Government Obligations, will absolutely and unconditionally provide in any and all circumstances not later than one day before each Payment Date an amount sufficient to pay and discharge the Principal payment of principal and accrued interest to be due and payable on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bePayment Date;
(b) such deposit will not result in a breach B. no Indenture Event of Default or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company deposit of cash and/or Government Obligations as contemplated hereby; TRUST INDENTURE AND SECURITY AGREEMENT [N397SW] -52- 59 C. the Owner Trustee shall have delivered to the Defeasance Trustee either (x) a ruling directed and to the Trustee received from Certificate Holders written confirmation by a nationally recognized firm of independent public accountants (other than the Internal Revenue Service accounting firm then serving as Shawmut Bank Connecticut, National Association's or the Owner Participant's regular auditors) selected by the Owner Trustee, the form and substance of which confirmation and the identity of such accounting firm shall be satisfactory to the effect Indenture Trustee, that the Holders Government Obligations deposited for payment of the Securities Certificates, together with any cash deposited by the Owner Trustee, are sufficient to satisfy the requirements of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.Subsection A hereof;
Appears in 1 contract
Sources: Trust Indenture and Security Agreement (Southwest Airlines Co)
Defeasance. Except as provided below(a) At any time prior to the ARD Prepayment Date for any Outstanding Series of Term Notes with the latest Anticipated Repayment Date (such Payment Date, the Company will be deemed “Defeasance Payment Date”), the Issuer may obtain the release from all covenants of this Base Indenture relating to have paid ownership and the Company and the Guarantor will be discharged from any and all obligations in respect leasing of the Securities of any series Contributed IP Addresses by delivering United States government securities that provide for payments on each Payment Date which replicate the required payments and scheduled Targeted Amortization Amounts, if any, due under the Guarantee thereof, and the provisions of this Indenture will no longer be in effect Transaction Documents with respect to all of the Securities of such series Notes then Outstanding, including the Indenture Trustee Fee and any other amounts due and owing to the Guarantee thereof (and the Indenture Trustee, at the expense Verification Agent Fee and any other amounts due and owing to the Verification Agent, the Servicing Fee, Other Servicing Fees and any other amounts due and owing to the Servicer through the Defeasance Payment Date for each Series of Notes (including payment in full of the Company and principal of the Guarantor, shall execute proper instruments acknowledging Notes on the samerelated Defeasance Payment Date); provided provided, that the following conditions shall have been satisfied:
(ai) no Event of Default has occurred and is continuing; (ii) the Company Issuer shall pay or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing deliver on the date of such deposit;defeasance (the “Defeasance Date”)
(da) all interest accrued and unpaid on the Company Outstanding Class Principal Balance of each Class of Notes to but not including the Defeasance Date (and, if the Defeasance Date is not a Payment Date, the interest that would have accrued to but not including the next Payment Date), (b) all other sums then due under each Class of Notes and all other Transaction Documents executed in connection therewith, including any costs incurred in connection with such defeasance, and (c) U.S. government securities providing for payments equal to the Scheduled Defeasance Payments; and (iii) a notice shall have been delivered to the Rating Agencies. In addition, the Issuer shall deliver to the Servicer on behalf of the Indenture Trustee either (x1) a ruling directed to security agreement granting the Indenture Trustee received from the Internal Revenue Service to the effect that the Holders on behalf of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as Secured Parties a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and first priority perfected security interest in the same manner and at U.S. government securities so delivered by the same times as would have been the case if such deposit and defeasance had not occurred or Issuer, (y2) an Opinion of Counsel as to the same effect as enforceability and perfection of such security interest and (3) a confirmation by an Independent certified public accounting firm that the ruling U.S. government securities so delivered are sufficient to pay all interest due from time to time after the Defeasance Date (or if the Defeasance Date is not a Payment Date, due after the next Payment Date) and all principal due upon maturity for each Class of Notes, and all Indenture Trustee Fee and any other amounts due and owing to the Indenture Trustee, Servicing Fees, Other Servicing Fees and any other amounts due and owing to the Servicer and the Verification Agent Fee and any other amounts due and owing to the Verification Agent, if any. The Issuer, pursuant to the security agreement described in clause (x) above; and, shall authorize and direct that the payments received from the U.S. government securities shall be made directly to the Indenture Trustee and applied to satisfy the obligations of the Issuer under the Notes and the other Transaction Documents.
(eb) If the Company has Issuer will continue to own any material assets other than the U.S. government securities delivered in connection with the defeasance, the Issuer shall establish or designate a special-purpose bankruptcy-remote successor entity acceptable to the Indenture Trustee (acting at the direction of the Servicer), with respect to which a substantive non-consolidation Opinion of Counsel reasonably satisfactory to the Indenture Trustee (consistent with the prior non-consolidation Opinion of Counsel most recently delivered to the Indenture Trustee) has been delivered to the Indenture Trustee and to transfer to that entity the pledged U.S. government securities. The new entity shall assume the obligations of the Issuer under the Notes being defeased and the security agreement and the Issuer and the Guarantor shall be relieved of their obligations in respect thereof under the Transaction Documents. The Issuer shall pay Ten Dollars ($10) to such new entity as consideration for assuming such obligations.
(c) If the Issuer satisfies the requirements of Section 2.11(a) to defease the Notes and delivers to the Indenture Trustee an Officers’ Officer’s Certificate of the Issuer and an Opinion of CounselCounsel in compliance with Section 15.01, in each case stating that all conditions precedent provided for herein relating the Indenture Trustee shall promptly execute, acknowledge and deliver to the defeasance contemplated by this Section 9.02 Issuer a release of the Securities Collateral under the applicable Transaction Documents in recordable form to the extent applicable for such release; provided that the Issuer shall, at their sole expense, prepare any and all documents and instruments necessary to effect such release, all of such series have been complied with. The obligations which shall be subject to the reasonable approval of the Company Indenture Trustee, and the Guarantor Issuer shall pay all costs reasonably incurred by the Indenture Trustee (including reasonable attorneys’ fees and disbursements) in Sections 2.02 through 2.12connection with the review, 4.02, 8.07, 8.08, 9.04 execution and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations delivery of the Company documents and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveinstruments necessary to effect such release.
Appears in 1 contract
Sources: Base Indenture (Cogent Communications Holdings, Inc.)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the GuarantorCompany, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(ai) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bii) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(ciii) no Default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(div) the Company shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge the Company's exercise of its option under this Section 9.02 8.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveabove and based upon a change in law and (2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(ev) the Company has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 8.02 of the Securities of such series have been complied with. The Company's obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.077.07, 8.08, 9.04 7.08 and 9.05, as applicable, 8.05 with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Company's obligations of the Company and the Guarantor in Sections 8.07 7.07 and 9.05, as applicable, 8.05 shall survive.
Appears in 1 contract
Defeasance. Except as provided below(a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the Release Date and prior to the Maturity Date to voluntarily defease all, or any portion of, the Company will be deemed entire Loan and obtain a release of the lien of the applicable Security Instrument or Security Instruments (hereinafter, a “Defeasance Event”), subject to have paid the satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Defeasance Date”) on which the Defeasance Event is to occur;
(ii) Unless otherwise agreed to in writing by Lender, Borrower shall pay to Lender (A) all payments of principal and interest due and payable on the Loan to and including the Defeasance Date (provided, that, if such Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the next occurring Monthly Payment Date); (B) all other sums, if any, due and payable under the Note, this Agreement, the Security Instruments and the Company other Loan Documents through and including the Defeasance Date (or, if the Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (C) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Defeasance Event, the release of the lien of the applicable Security Instrument on the applicable Individual Property, the review of the proposed Defeasance Collateral and the Guarantor will be discharged from preparation of the Security Agreement, the Defeasance Collateral Account and related documentation; and (D) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Defeasance Event;
(iii) Borrower shall deposit the Defeasance Collateral into the Defeasance Collateral Account and all obligations otherwise comply with the provisions of Section 2.8(d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Securities Defeasance Collateral Account and the Defeasance Collateral;
(v) In the event only a portion of the Loan is the subject of the Defeasance Event, Borrower shall prepare all necessary documents to modify this Agreement and to amend and restate the Note and issue two substitute notes for the Note, one note having a principal balance equal to the defeased portion of the original Note and a maturity date equal to the Maturity Date (the “Defeased Note”) and the other note having a principal balance equal to the undefeased portion of the original Note and a maturity date equal to the Maturity Date (the “Undefeased Note”). The Defeased Note and the Undefeased Note shall have identical terms as the original Note except for the principal balance. A Defeased Note cannot be the subject of any series further Defeasance Event. The Undefeased Note may be the subject of a further Defeasance Event in accordance with the terms and the Guarantee thereof, and the provisions of this Indenture will no longer be Section 2.8 (the term “Note”, as used in effect with respect this clause (v) for such purpose, being deemed to refer to the Securities Undefeased Note that is the subject of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trusteefurther defeasance), as provided, however, that no such partial defeasance shall take place unless the case may beconditions outlined in Section 2.9.2 are satisfied;
(bvi) Borrower shall deliver to Lender (i) an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (A) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Defeasance Collateral; (B) if a Securitization has occurred (1) the REMIC Trust formed pursuant to such deposit Securitization and/or any subsequent or prior Securitization of the Loan (or any portion thereof or interest therein) will each not fail to maintain their respective status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code as a result of a Defeasance Event pursuant to this Section 2.8 and (2) the Defeasance Event would not (I) constitute a “significant modification” of the Loan within the meaning of Treasury Regulation Section 1.1001-3(b) or (II) cause the Loan to fail to be a “qualified mortgage” within the meaning of Section 860(a)(3)(A) of the IRS Code; (C) the Defeasance Event will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders deemed exchange for purposes of the Securities of such series IRS Code and will not recognize income, gain or loss adversely affect the status of the Note as indebtedness for federal income tax purposes purposes; and (D) delivery of the Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law; and (ii) a New Non-Consolidation Opinion with respect to Successor Borrower;
(vii) Borrower shall deliver to Lender a Rating Agency Confirmation as a result of such discharge under to the Defeasance Event;
(viii) Borrower shall deliver an Officer’s Certificate certifying that the requirements set forth in this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would 2.8 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm acceptable to Lender certifying that the case if such deposit and defeasance had not occurred Defeasance Collateral will generate monthly amounts equal to or (y) an Opinion of Counsel to greater than the same effect as the ruling described in clause (x) aboveScheduled Defeasance Payments; and
(ex) the Company has delivered to the Trustee an Officers’ Certificate Borrower shall deliver such other certificates, opinions, documents and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, instruments as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveLender may reasonably request.
Appears in 1 contract
Defeasance. Except as provided below, On the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided date that the following conditions shall have been satisfied:
: (ai) the Company or the Guarantor has irrevocably Transferor shall have deposited (x) in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of Funding Account, an amount such that the amount on deposit in the Principal Funding Account following such deposit is equal to the Class A Outstanding Principal Amount, and (y) in the Payment Reserve Account, an amount sufficient to pay all remaining interest on the Class A Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient scheduled to accrue through the Expected Final Payment Date; (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dii) the Company Transferor shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (ya) an Opinion of Counsel to the same effect that such deposit will not result in the Trust being required to register as an "investment company" within the ruling described meaning of the Investment Company Act of 1940, as amended, (b) an Opinion of Counsel to the effect that following such deposit none of the Trust, the Payment Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation, (c) a certificate of an officer of the Transferor stating that the Transferor reasonably believes that such deposit will not cause a Pay Out Event or any event that, with the giving of notice or the lapse of time, or both, would constitute a Pay Out Event, to occur; and (iv) a Ratings Event will not occur, the Series 2002-4 Securities will no longer be entitled to the security interest of the Trust in the Receivables and, except those set forth in clause (xi) above; and
, other Trust Property (ea "Defeasance") and the Company has delivered percentages applicable to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating allocation to the defeasance contemplated by this Section 9.02 Series 2002-4 Securityholders of Principal Collections, Finance Charge Collections and Defaulted Receivables will be reduced to zero. Upon satisfaction of the Securities of such series have been complied withforegoing conditions, the Class B Invested Amount will be reduced to zero.
Section 7. The obligations Article V of the Company Agreement. Article V of the Agreement shall read in its entirety as follows and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect shall be applicable only to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.Series 2002-4 Securities:
Appears in 1 contract
Sources: Supplement (Metris Receivables Inc)
Defeasance. Except as provided belowAny Outstanding Bonds of any Series shall, prior to the Company will maturity or redemption date thereof, be deemed to have been paid within the meaning and with the Company and effect expressed in Section 8.01 if (a) in case any of such Bonds are to be redeemed on any date prior to their maturity, the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect Issuer shall have given to the Securities Trustee in form satisfactory to it a Letter of Instructions containing irrevocable instructions to give notice of redemption of such series and the Guarantee thereof Bonds on said date as provided in Article IV hereof, (and b) there shall have been deposited with the Trustee, at in trust, either money in an amount which shall be sufficient, or Defeasance Investment Securities the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on which without any reinvestment thereof when due will provide money which, together with the Securities of such seriesmoney, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyif any, deposited with the Trustee at the same time, shall be sufficient, in the opinion of a nationally recognized firm of an independent certified public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trusteeaccountant, to pay when due the principal or Redemption Price of, and discharge the Principal of interest due and accrued interest to become due on, such Bonds on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory prior to the Trustee), as the case may be;
(b) such deposit will not result in a breach redemption date or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantormaturity date thereof, as the case may be, is a party or by which it is bound;
(c) no Default with respect in the event such Bonds are not to be redeemed within the next succeeding 60 days, the Issuer shall have given the Trustee in form satisfactory to it a Letter of Instructions containing irrevocable instructions to mail, as soon as practicable, notice to the Securities Owners of all such series shall Bonds that the deposit required by (b) above has been made with the Trustee or an escrow agent and that such Bonds are deemed to have occurred been paid in accordance with this Section and stating such maturity or Redemption Date upon which money is to be continuing made available for the payment of the principal or Redemption Price of and interest on the date of such deposit;
Bonds, (d) the Company there shall have be delivered to the Trustee either evidence that the Bonds so defeased will be rated in the highest long-term rating category by a Rating Agency; and (xe) a ruling directed there shall be delivered to the Trustee received from the Internal Revenue Service a written opinion of Bond Counsel to the effect that the Holders provisions of this Section 8.02 have been complied with and such defeasance will not adversely affect the exclusion of the Securities of such series will not recognize income, gain or loss interest on the Bonds from gross income for federal income tax purposes purposes. Neither Defeasance Investment Securities nor money deposited with the Trustee or an escrow agent pursuant to this Section nor principal or interest payments on any such Defeasance Investment Securities shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal or Redemption Price of and interest on said Bonds; provided that any cash received from such principal or interest payment on such Defeasance Investment Securities, (i) to the extent such cash will not be required at any time for such purpose, shall be paid over to the Issuer as a result received, free and clear of any trust, lien, security interest, pledge or assignment securing such discharge Bonds or otherwise existing under this Section 9.02 Indenture, if all Bonds have been redeemed or discharged, otherwise such cash shall be deposited as Revenues, and (ii) to the extent such cash will be subject required for such purpose at a later date, shall, to federal income tax on the same amount extent practicable, be reinvested in the Defeasance Investment Securities maturing at times and in amounts sufficient to pay when due the same manner principal or Redemption Price of and at interest to become due on such Bonds, on or prior to such Redemption Date or maturity date thereof, as the same times case may be, and interest earned from such reinvestment shall be paid over to the Issuer, as would received, free and clear of any trust, lien or pledge, if all Bonds have been the case if redeemed or discharged, otherwise such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect cash shall be deposited as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveRevenues.
Appears in 1 contract
Sources: Indenture of Trust
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions The principal balance of this Indenture will no longer Note may not be prepaid in effect whole or in part (except with respect to the Securities application of such series Involuntary Payments (as defined below)) prior to the Maturity Date; provided, however, Borrower shall have the right and option to release the Guarantee thereof “Property” (as defined in the Security Deed) from the lien of the Security Deed in accordance with the terms and provisions set forth in the Security Deed (“Defeasance”). Notwithstanding the foregoing sentence, Borrower shall have the privilege to prepay the entire amount of the outstanding Debt on the first (1st) day of any of the three (3) calendar months preceding the month in which the scheduled Maturity Date occurs without Defeasance or the payment of the Yield Maintenance Premium (as defined in the Security Deed) or any other premium or penalty. Notwithstanding the foregoing, if prior to the scheduled Maturity Date and during the existence of any Event of Default, Borrower shall tender payment (and such tender is made on any day other than on the Trustee, at the expense first (1st) day of any of the Company three (3) calendar months preceding the month in which the scheduled Maturity Date occurs) of an amount sufficient to satisfy the Debt at any time prior to a sale of the Property either through foreclosure or the exercise of the other remedies available to Lender under the Security Deed, such tender by Borrower shall be deemed to be voluntary and Borrower shall pay, in addition to the GuarantorDebt, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
greater of (a) the Company yield Maintenance Premium, if any, that would be payable in connection with a Defeasance, or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, three percent (3%) of the unpaid principal balance of this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect Note. In addition to the Securities of such series foregoing, Borrower shall have occurred not be required to pay any fee or consideration if, in accordance with the terms and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders conditions of the Securities of such series will not recognize income, gain Security Deed. Lender receives (i) insurance proceeds or loss for federal income tax purposes other payments as a result of fire or other casualties. or (ii) awards or other payments made in any condemnation or eminent domain proceedings (collectively, “Involuntary Prepayments”), and such discharge Involuntary Prepayments are applied by Lender toward reduction of the Debt; provided, however, if an Event of Default, or an event with notice and/or the passage of time would constitute an Event of Default, exists, then the Borrower shall pay to the Lender an additional amount equal to the greater of (A) the Yield Maintenance Premium, if any, that would be required if such Involuntary Prepayment had been Defeased, or (B) three percent (3%) of the Involuntary Prepayment. In the event that any such Involuntary Prepayments are applied to the outstanding principal balance due under this Section 9.02 Note, Lender shall, upon written notice to Borrower, recalculate the Monthly Payment subsequently due hereunder based on (i) the principal balance outstanding after application of any such Involuntary Prepayment, (ii) the Remaining Amortization Period (hereinafter defined), and will be subject to federal income tax (iii) the Contract Rate. As used herein, “Remaining Amortization Period” shall mean the Amortization Period less the number of calendar months for which a Monthly Payment was made hereunder on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel prior to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 date of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveInvoluntary Prepayment.
Appears in 1 contract
Sources: Deed to Secure Debt Note (NNN Healthcare/Office REIT, Inc.)
Defeasance. Except as provided below(a) If the Authority shall pay or cause to be paid, or there shall otherwise be paid, to the Owners of all of the Bonds then Outstanding, the Company will principal of and interest on and Redemption Price, if any, to become due thereon, at the times and in the manner stipulated therein and in this Indenture, then and in that event the covenants, agreements and other obligations of the Authority to the Bondowners shall be discharged and satisfied. In such event, the Trustee shall,
(i) upon request of the Authority, execute and deliver to the Authority and the Borrower all such instruments as may be reasonably requested by the Authority to evidence such release and discharge, and (ii) if S&P is then rating the Series A Bonds, give written notice to S&P of the date on which such payments were made. In addition, the Trustee and the Paying Agents shall pay over to or deliver to the Borrower all moneys or securities held by them pursuant to the Indenture which are not required for the payment or redemption of Bonds not theretofore surrendered for such payment of any amounts owed to the Trustee or for the payment or redemption.
(b) If the Authority shall pay or cause to be paid, or there shall otherwise be paid, to the Owners of the Bonds then Outstanding, the principal of and interest on and Redemption Price, if any, to become due thereon, at the times and in the manner stipulated therein and in this Indenture, then and in that event such Bonds shall cease to be entitled to any lien, benefit or security under this Indenture and the covenants, agreements and other obligations of the Authority to the Owners of such Bonds shall be discharged and satisfied, except for the Authority’s obligations under Section 7.14 hereof and its obligations under Section 8.5, to the extent of any amounts owed to the Trustee.
(c) Any Bonds or interest installments for the payment or redemption of which moneys shall then be held by the Trustee or the Paying Agents (through deposit by the Authority of funds for such payment or redemption or otherwise), whether at or prior to the maturity or the redemption date of such Bonds, shall be deemed to have been paid within the meaning and with the Company effect expressed in paragraph (a) of this Section 13.1. Any Bonds shall prior to the maturity or redemption date thereof be deemed to have been paid within the meaning and with the Guarantor will effect expressed in paragraph (a) of this Section 13.1 if (i) in case such Bonds are to be discharged from redeemed on any and all obligations date prior to their maturity, the Authority shall have given to the Trustee, in respect form satisfactory to it, irrevocable instructions to give notice of the Securities of any series and the Guarantee thereof, and the provisions redemption as provided in Article IV of this Indenture will no longer be in effect with respect to the Securities on said date of such series and the Guarantee thereof Bonds, (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions ii) there shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for either moneys in an amount which shall be sufficient, or Government Obligations the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on which when due will provide moneys which, together with the Securities moneys, if any, deposited with the Trustee at the same time, shall be sufficient, as verified by an Accountant’s Certificate to pay when due the principal or Redemption Price, if applicable, of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless Bonds and interest due and to become due on such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Bonds on and prior to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes Principal Payment Date or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity Dates or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach date or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantordates thereof, as the case may be, is a party or and (iii) in the event such Bonds are not by which their terms subject to redemption within the next succeeding sixty (60) days, the Authority shall have given the Trustee in form satisfactory to it is bound;
(c) no Default with respect irrevocable instruction to give notice by mail, as soon as practicable, to the Securities Owners of such series Bonds and to S&P, if S&P is then rating the Series A Bonds, that the deposit required by (ii) above has been made with the Trustee and that such Bonds are deemed to have been paid in accordance with paragraph (a) of this Section 13.1 and stating such Principal Payment Date or Dates or redemption date or dates upon which moneys are to be available for the payment of the principal of, Redemption Price, if applicable, on such Bonds. Neither Government Obligations nor moneys deposited with the Trustee pursuant to this Section nor principal or interest payments on any such Government Obligations shall have occurred be withdrawn or used for any purpose other than, and shall be continuing held in trust for, the payment of the principal of or Redemption Price, if applicable, and interest on said Bonds; provided that any cash received from such principal or interest payments on such Government Obligations deposited with the Trustee, if not then needed for such purpose, shall, to the extent practicable, be reinvested in Government Obligations maturing at times and in Principal Amounts sufficient to pay when due the principal or Redemption Price, if applicable, and interest to become due on said Bonds on and prior to such Principal Payment Date or Dates or redemption date or dates thereof, as the case may be, all as further provided in an escrow agreement relating to the defeasance of such deposit;the Bonds.
(d) Other Government Obligations may be substituted for those originally deposited with the Company Trustee pursuant to paragraph (c) of this Section 13.1; provided that there shall have delivered been furnished to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service Counsel’s Opinion to the effect that such substitution will not adversely affect the Holders exclusion from federal gross income of interest on any Bonds and an Accountant’s Certificate verifying the sufficiency of the Securities moneys and Government Obligations to pay or redeem any Bonds deemed to have been paid pursuant to paragraph (c) of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and13.1.
(e) the Company has delivered Anything in this Indenture to the contrary notwithstanding, any moneys held by the Trustee an Officers’ Certificate or Paying Agents in trust for the payment and an Opinion discharge of Counselany of the Bonds which remain unclaimed for two years after the date when such Bonds have become due and payable, in each case stating that all conditions precedent provided either at their stated maturity dates or by call for herein relating earlier redemption, if such moneys were held by the Trustee or Paying Agents at such date, or for two years after the date of deposit of such moneys if deposited with the Trustee or Paying Agents after the said date when such Bonds became due and payable, shall, be repaid by the Trustee or Paying Agents to the defeasance contemplated by this Section 9.02 of Borrower and become its absolute property, free from trust, and the Securities Trustee or Paying Agents shall thereupon be released and discharged with respect thereto and the Bondowners thereafter shall look only to the Borrower for the payment of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveBonds.
Appears in 1 contract
Sources: Indenture of Trust
Defeasance. Except as provided below, the Company Issuer will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the GuarantorIssuer, shall execute proper instruments in form and substance satisfactory to the Issuer and the Trustee acknowledging the same); provided that ) if the following conditions shall have been satisfied:
(a) the Company or the Guarantor Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and dedicated solely for the benefit of the to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, Issuer is a party or by which it is bound;
(c) no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company Issuer shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal Federal income tax purposes as a result of such discharge the Issuer’s exercise of its option under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveabove and based upon a change in law and (2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(e) the Company Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The Issuer’s obligations of the Company in Section 2.03 through 2.11, 3.02, 5.06, 5.09 and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, 9.05 with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Issuer’s obligations of the Company in Section 5.06 and the Guarantor in Sections 8.07 and 9.05, as applicable, 9.05 shall survive.
Appears in 1 contract
Sources: Indenture (Loop Media, Inc.)
Defeasance. Except as provided belowIf the Issuer shall pay or cause to be paid to the Owner of any Bond secured hereby the principal of, and premium, if any, and interest due and payable, and thereafter to become due and payable, upon such Bond or any portion of such Bond in an Authorized Denomination thereof, such Bond or portion thereof shall cease to be entitled to any lien, benefit or security under this Indenture. If the Issuer shall pay or cause to be paid the principal of, and premium if any, and interest due and payable on, all Outstanding Bonds, and thereafter to become due and payable thereon, and shall pay or cause to be paid all other sums payable hereunder by the Issuer, including any necessary and proper fees, compensation and expenses of the Trustee and the Registrar, then, and in that case, the right, title and interest of the Trustee in and to the Trust Estate shall thereupon cease, terminate and become void. In such event, the Trustee shall assign, transfer and turn over the Trust Estate to the Company will and any surplus in the Bond Fund and any balance remaining in any other fund created under this Indenture shall be paid to the Company upon the request of an Authorized Company Representative, other than any unclaimed moneys held pursuant to Section 5.04. The Trustee may conclusively rely on certificates of the Registrar as to the amount of any fees, expenses and other amounts owing to it. All or any portion of Bonds (in Authorized Denominations) shall, prior to the maturity or redemption date thereof, be deemed to have been paid within the meaning of this Article VII and the Company and the Guarantor will be discharged from any and for all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions purposes of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedwhen:
(a) in the event said Bonds or portions thereof have been selected for redemption in accordance with Section 3.04 hereof, the Trustee shall have given, or the Company shall have given to the Trustee in form satisfactory to it irrevocable instructions to give, on a date in accordance with the provisions of Section 3.05 hereof, notice of redemption of such Bonds or the Guarantor has irrevocably portions thereof;
(b) there shall have been deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof moneys in an amount sufficient (unless such funds consist solely of moneywithout relying on any investment income), in the opinion of a firm of nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trusteeaccountants, to pay when due the principal of, and discharge premium, if any, and interest due and to become due (which amount of interest to become due shall be calculated at the Principal of actual rate borne by such Bonds) on said Bonds or portions thereof on and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory prior to the Trustee)redemption date or maturity date thereof, as the case may be;
(c) in the event said Bonds or portions thereof do not mature and are not to be redeemed within the next succeeding 60 days, the Company on behalf of the Issuer shall have given the Trustee in form satisfactory to it irrevocable instructions to give, as soon as practicable in the same manner as a notice of redemption is given pursuant to Section 3.05 hereof, and a notice to the Owners of said Bonds or portions thereof that the deposit required by clause (b) such deposit will not result above has been made with, and the opinion required by clause (b) above has been delivered to, the Trustee and that said Bonds or portions thereof are deemed to have been paid in a breach accordance with this Article VII and stating the maturity date or violation redemption date upon which moneys are to be available for the payment of the principal of, and premium, if any, and interest on, said Bonds or constitute portions thereof; and
(d) the Trustee shall have received a default underFavorable Opinion of Bond Counsel with respect to such deposit. Moneys deposited with the Trustee pursuant to this Article VII shall not be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of, premium, if any, and interest on said Bonds or portions thereof; provided that such moneys, if not then needed for such purpose, shall to the extent practicable, be invested and reinvested in Government Obligations maturing on or prior to the Interest Payment Date next succeeding the date of investment or reinvestment, and interest earned from such investments shall be paid over to the Company, as received by the Trustee, free and clear of any trust, lien or pledge. If payment of less than all the Bonds is to be provided for in the manner and with the effect provided in this Article VII, the Trustee shall select such Bonds or portion of such Bonds in the manner specified by Section 3.04 hereof for selection for redemption of less than all Bonds in the principal amount permitted by Section 3.01(b) hereof. Notwithstanding that all or any portion of the Bonds are deemed to be paid within the meaning of this Article VII, the provisions of this Indenture relating to (i) the registration and exchange of Bonds, (ii) replacement of mutilated, lost, destroyed or any other material agreement or instrument stolen Bonds, (iii) payment of the Bonds from the moneys deposited as described in this Article and (iv) payment, compensation, reimbursement and indemnification of the Trustee and the Registrar shall remain in full force and effect with respect to which all Bonds until the Company maturity date thereof or the Guarantorlast date fixed for redemption of all Bonds prior to maturity and, in the case of clause (iv), until payment, compensation, reimbursement or indemnification, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveRegistrar.
Appears in 1 contract
Sources: Indenture of Trust (Green Plains Renewable Energy, Inc.)
Defeasance. Except (A) If the Issuer shall pay or cause to be paid, or there shall be otherwise paid or provision for payment made to or for the Owners of the Bonds the principal, premium, if any, and interest due or to become due thereon at the times and in the manner stipulated therein, and if the Issuer shall keep, perform and observe all the covenants and promises in the Bonds and in this Indenture expressed as to be kept, performed and observed by it or on its part, and shall pay or cause to be paid to the Trustee all sums of money due or to become due according to the provisions hereof, then this Indenture and the lien, rights and interests created hereby shall cease, determine and become null and void (except as to any surviving rights of payment, registration, transfer or exchange of Bonds herein provided belowfor), whereupon the Trustee upon written request of an Authorized Issuer Representative shall cancel and discharge this Indenture, and execute and deliver to the Issuer such instruments in writing as shall be requested by an Authorized Issuer Representative and requisite to discharge this Indenture, and release, assign and deliver unto the Issuer any and all the estate, right, title and interest in and to any and all rights assigned or pledged to the Trustee or otherwise subject to this Indenture, except amounts in the Bond Fund required to be paid to the Borrower under Section 6.14 hereof and except moneys or securities held by the Trustee for the payment of the principal of and premium, if any, and interest on, and purchase prices of, the Company will Bonds. Notwithstanding the foregoing, under no circumstances may the Issuer or the Borrower receive any funds derived from a draw on any Liquidity Facility, Bond Insurance or moneys held for the payment of particular Bonds.
(B) Any Bond or Authorized Denomination thereof shall be deemed to have be paid and within the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions meaning of this Indenture when (a) payment of the principal of and premium, if any, on such Bond or Authorized Denomination thereof, plus interest thereon to the due date thereof (whether such due date is by reason of maturity or upon redemption as provided herein) either (i) shall have been made or caused to be made in accordance with the terms thereof, (ii) shall have been provided for by depositing sufficient amounts as described in clause (1) and/or (2) below for such payment with the Trustee and the due date of such principal, interest and premium, if any, has occurred, or (iii) in the case of a Bond which bears interest at a Flexible Rate, a Taxable Term Rate, a Taxable Flexible Rate or a Term Rate, shall have been provided for by irrevocably depositing with the Trustee in trust and irrevocably setting aside exclusively for such payment on such due date (which due date shall be in the case of a Bond bearing interest at a Flexible Rate or Taxable Flexible Rate no later than the Interest Payment Date for the then current Flexible Segment or Taxable Segment, as applicable, for such Bond and in the case of a Bond bearing interest at a Term Rate no later than the last Interest Payment Date for the then current Term Rate Period or Taxable Term Rate Period for such Bond) (1) cash (insured at all times by the Federal Deposit Insurance Corporation or otherwise collateralized with obligations described in clause (2) following), or (2) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America maturing as to principal and interest in such amount and at such time as will insure the availability of sufficient moneys to make such payment, and (b) all necessary and proper fees, compensation and expenses of the Trustee pertaining to any such deposit shall have been paid or the payment thereof provided for to the satisfaction of the Trustee; provided, however, that no Bond shall be deemed paid pursuant to this Article VIII prior to the due date for the payment of principal, premium if any, and interest thereon unless there shall have been delivered an opinion of Bond Counsel to the effect that such treatment will not adversely affect the Tax-Exempt status of any Tax-Exempt Series of Bonds hereunder and will not cause such Bonds to be treated as sold or otherwise disposed of for the purposes of Section 1001 of the Code (or any successor provision). At such times as a Bond or Authorized Denomination thereof shall be deemed to be paid hereunder, as aforesaid, such Bond or Authorized Denomination thereof shall no longer be in effect with respect secured by or entitled to the Securities benefits of this Indenture (other than Sections 2.04 and 2.08 hereof in the case of a deposit under clause (a)(iii) above), except for the purposes of any such payment from such moneys or government obligations referred to in clause (2) above.
(C) Notwithstanding the foregoing paragraph, in the case of a Bond or Authorized Denomination thereof which by its terms may be redeemed prior to the stated maturity thereof, no deposit under clause (a)(iii) of the immediately preceding paragraph shall be deemed a payment of such series and the Guarantee Bond or Authorized Denomination thereof as aforesaid until: (and the Trustee, at the expense a) proper notice of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions redemption of such Bond or Authorized Denomination thereof shall have been satisfied:
previously given in accordance with Article III of this Indenture, or in the event said Bond or Authorized Denomination thereof is not to be redeemed within the next succeeding seventy-five (a75) days, until the Company or the Guarantor has irrevocably deposited in trust with Borrower shall have given the Trustee as trust funds solely for the benefit on behalf of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyIssuer, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements form satisfactory to the Trustee), irrevocable instructions to notify, as soon as practicable, the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities Owner of such series shall have occurred and be continuing on Bond or Authorized Denomination thereof in accordance with Article III hereof, that the date of such deposit;
deposit required by (da)(iii) the Company shall have delivered to above has been made with the Trustee either (x) a ruling directed and that said Bond or Authorized Denomination thereof is deemed to have been paid in accordance with this Article and stating the Trustee received from maturity or redemption date upon which moneys are to be available for the Internal Revenue Service to the effect that the Holders payment of the Securities principal of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12applicable premium, 4.02if any, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.on said Bond or Authorized
Appears in 1 contract
Defeasance. Except as provided below(a) At any time other than during the continuance of the Prepayment Period for any Series of Outstanding Notes, the Company will be deemed to have paid and Issuer may obtain the Company and the Guarantor will be discharged release from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions covenants of this Indenture will no longer be in effect relating to the ownership and operation of the Tower Sites by delivering United States government securities that provide for payments equal to the Scheduled Defeasance Payments with respect to the Securities each Series of such series then Outstanding Notes, provided, that (i) no Event of Default has occurred and the Guarantee thereof is continuing and (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(aii) the Company Issuer shall pay or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing deliver on the date of such deposit;defeasance (the “Defeasance Date”)
(da) all interest accrued and unpaid on the Company shall Class Principal Balance of each Class of Outstanding Notes to but not including the Defeasance Date (and if the Defeasance Date is not a Payment Date, the interest that would have delivered accrued to but not including the next Payment Date), (b) all other sums then due under each Class of Notes and all other Transaction Documents executed in connection therewith, including any costs incurred in connection with such defeasance, and (c) U.S. government securities providing for payments equal to the Scheduled Defeasance Payments with respect to each Series of then Outstanding Notes. In addition, the Issuer shall deliver to the Servicer on behalf of the Indenture Trustee either (x1) a ruling directed to security agreement granting the Indenture Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and first priority perfected security interest in the same manner and at U.S. government securities so delivered by the same times as would have been the case if such deposit and defeasance had not occurred or Issuer, (y2) an Opinion of Counsel as to the same effect as enforceability and perfection of such security interest, (3) a confirmation by an Independent certified public accounting firm that the ruling described in clause U.S. government securities so delivered are sufficient to pay all interest due from time to time after the Defeasance Date (xor if the Defeasance Date is not a Payment Date, due after the next Payment Date) above; and
(e) through the Company has delivered Defeasance Payment Date and all principal on the Defeasance Payment Date, and all Indenture Trustee Fees, Workout Fees, Servicing Fees, Other Servicing Fees, and any other amounts due and owing to the Trustee an Officers’ Certificate Servicer, if any, and an Opinion of Counsel(4) a Rating Agency Confirmation. The Issuer, in each case stating that all conditions precedent provided for herein relating pursuant to the defeasance contemplated by this Section 9.02 of security agreement described above, shall authorize and direct that the Securities of such series have been complied with. The obligations of payments received from the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect U.S. government securities shall be made directly to the Securities of such series Indenture Trustee and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only applied to satisfy the obligations of the Issuer under the Notes and the other Transaction Documents.
(b) If the Asset Entities will continue to own any material assets other than the U.S. government securities delivered in connection with the defeasance, the Issuer shall establish or designate a special-purpose bankruptcy-remote successor entity acceptable to the Indenture Trustee (with respect to which (i) a substantive non-consolidation Opinion of Counsel reasonably satisfactory to the Indenture Trustee has been delivered to the Indenture Trustee and (ii) an Opinion of Counsel reasonably satisfactory to the Indenture Trustee has been delivered to the Indenture Trustee that the Issuer will not be required to register as an investment company under the Investment Company Act), and to transfer to that entity the pledged U.S. government securities. The new entity shall assume the obligations of the Issuer under the Notes being defeased and the security agreement and the Obligors and the Guarantor shall be relieved of their obligations in Sections 8.07 respect thereof under the Transaction Documents. The Issuer shall pay Ten Dollars ($10) to such new entity as consideration for assuming such obligations.
(c) If the Issuer satisfies the requirements of Section 2.11(a) to defease the Notes, the Indenture Trustee shall promptly execute, acknowledge and 9.05deliver to the Obligors a release of the Collateral under the applicable Transaction Documents in recordable form to the extent applicable for such release; provided that the Obligors shall, as applicableat their sole expense, prepare any and all documents and instruments necessary to effect such release, all of which shall survivebe subject to the reasonable approval of the Indenture Trustee, and the Obligors shall pay all costs reasonably incurred by the Indenture Trustee (including, but not limited to, reasonable attorneys’ fees and disbursements, title search costs or endorsement premiums) in connection with the review, execution and delivery of the documents and instruments necessary to effect such release.
Appears in 1 contract
Sources: Indenture (American Tower Corp /Ma/)
Defeasance. Except as provided below(a) At any time prior to the Payment Date that is six (6) months prior to the Anticipated Repayment Date of any outstanding Series (such Payment Date, the Company will be deemed to have paid and “Defeasance Payment Date”) , the Company and Issuer may obtain the Guarantor will be discharged release from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions covenants of this Indenture will no longer be in effect with respect relating to ownership and operation of the Securities Tower Sites by delivering United States government securities that provide for payments which replicate the required payments on all of such series the Notes then outstanding and the Guarantee thereof Indenture Trustee Fee and Workout Fees, if any, through the Defeasance Payment Date for each Series of Notes (and the Trustee, at the expense including payment in full of the Company and principal of the Guarantor, shall execute proper instruments acknowledging Notes on the samerelated Defeasance Payment Date); provided provided, that the following conditions shall have been satisfied:
(ai) no Event of Default has occurred and is continuing and (ii) the Company Issuer shall pay or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing deliver on the date of such deposit;defeasance (the “Defeasance Date”)
(da) all interest accrued and unpaid on the Company shall Outstanding Class Principal Balance of each Class of Notes to but not including the Defeasance Date (and if the Defeasance Date is not a Payment Date, the interest that would have delivered accrued to but not including the next Payment Date), (b) all other sums then due under each Class of Notes and all other Transaction Documents executed in connection therewith, including any costs incurred in connection with such defeasance, and (c) U.S. government securities providing for payments equal to the Scheduled Defeasance Payments. In addition, the Issuer shall deliver to the Servicer on behalf of the Indenture Trustee either (x1) a ruling directed to security agreement granting the Indenture Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax first priority perfected security interest on the same amount and in U.S. government securities so delivered by the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or Issuer, (y2) an Opinion of Counsel as to the same effect as enforceability and perfection of such security interest, (3) a confirmation by an Independent certified public accounting firm that the ruling described in clause U.S. government securities so delivered are sufficient to pay all interest due from time to time after the Defeasance Date (xor if the Defeasance Date is not a Payment Date, due after the next Payment Date) above; and
and all principal due upon maturity for each Class of Notes, and all Indenture Trustee Fee and Workout Fees, if any, and (e4) the Company has delivered a Rating Agency Confirmation. The Issuer, pursuant to the Trustee an Officers’ Certificate security agreement described above, shall authorize and an Opinion of Counsel, in each case stating direct that all conditions precedent provided for herein relating the payments received from the U.S. government securities shall be made directly to the defeasance contemplated by this Section 9.02 of Indenture Trustee and applied to satisfy the Securities of such series have been complied with. The obligations of the Company Issuer under the Notes and the Guarantor other Transaction Documents.
(b) If the Asset Entities will continue to own any material assets other than the U.S. government securities delivered in Sections 2.02 through 2.12connection with the defeasance, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicablethe Issuer shall establish or designate a special-purpose bankruptcy-remote successor entity acceptable to the Indenture Trustee, with respect to which (i) a substantive non-consolidation Opinion of Counsel reasonably satisfactory to the Securities Indenture Trustee has been delivered to the Indenture Trustee and to transfer to that entity the pledged U.S. government securities and (ii) an Opinion of such series and Counsel reasonably satisfactory to the Guarantee thereof Indenture Trustee has been delivered to the Indenture Trustee that the Issuer will not be required to register as an investment company under the Investment Company Act. The new entity shall survive until such Securities are no longer outstanding. Thereafter, only assume the obligations of the Company Issuer under the Notes being defeased and the security agreement and the Obligors and the Guarantor shall be relieved of their obligations in Sections 8.07 and 9.05, respect thereof under the Transaction Documents. The Issuer shall pay Ten Dollars ($10) to such new entity as applicable, shall surviveconsideration for assuming such obligations.
Appears in 1 contract
Sources: Indenture (American Tower Corp /Ma/)
Defeasance. Except as provided below(a) Notwithstanding any provisions of this Article 2 to the contrary, at any time following the earlier of the third (3rd) anniversary of the Closing Date or a REMIC Prohibition Period, Borrower may cause the release of the Properties from the Lien of the Mortgages and the other Loan Documents (or, in the case of a release of any Individual Property pursuant to Section 15.1(c)(viii) hereof, the Company will be deemed to have paid and release of such Individual Property from the Company and the Guarantor will be discharged from any and all obligations in respect Lien of the Securities applicable Mortgage) (the Individual Property being released pursuant Section 15.1(c)(viii) hereof being referred to individually as a “Defeased Property,” and to the extent more than one Individual Property is subject to release from the Lien of its Mortgage pursuant to the provisions of Section 15.1(c)(viii) hereof, collectively, as the “Defeased Properties”) upon the satisfaction of the following conditions:
(i) no Event of Default shall have occurred and be continuing;
(ii) not less than thirty (30) (but not more than ninety (90)) days prior written notice shall be given to Lender specifying a date on which the Defeasance Collateral is to be delivered (the “Defeasance Release Date”); provided, however, that Borrower shall have the right to cancel or extend (by no more than thirty (30) days) such notice by providing Lender with notice of cancellation or extension not less than five (5) Business Days prior to the scheduled Defeasance Release Date, provided that Borrower shall pay all of Lender’s reasonable costs and expenses incurred as a result of such cancellation or extension;
(iii) all sums due under this Agreement, the Note and under the other Loan Documents up to the Defeasance Release Date, including, without limitation, all actual out-of-pocket third party fees, costs and expenses incurred by Lender and its agents in connection with such release (including, without limitation, reasonable legal fees and expenses for the review and preparation of the Defeasance Security Agreement and of the other materials described in this Section 2.8 and any series related documentation, and any servicing fees, Rating Agency fees or other costs related to such release), shall be paid in full on or prior to the Guarantee thereofDefeasance Release Date;
(iv) solely in the event less than the entire amount of the Loan is the subject of a release (a “Partial Defeasance”) pursuant to Section 15.1(c)(viii) hereof, Lender, at Borrower’s expense, shall prepare all necessary documents to modify this Agreement and to amend and restate the Note (or the Undefeased Note (as defined below) if a Partial Defeasance has occurred previously) and issue two substitute notes, with one (the “Defeased Note”) having a principal balance equal to the Release Price, and the provisions of this Indenture will no longer be in effect with respect other (the “Undefeased Note”) having a principal balance equal to the Securities excess of such series (x) the outstanding principal amount of the Loan (or the Undefeased Note if a Partial Defeasance has occurred previously) over (y) the principal balance of the Defeased Note. The Defeased Note and the Guarantee thereof Undefeased Note shall have identical terms as the Note except for the principal balance and the payment terms thereof, which shall require that the Monthly Payment Amount be allocated between the Defeased Note and the Undefeased Note in accordance with the same percentage that the principal amount of each such note represents of their sum, and may be cross-defaulted with each other at Lender’s sole option;
(v) Borrower shall deliver to Lender on or prior to the Defeasance Release Date:
(A) a pledge and security agreement, in form and substance which would be reasonably satisfactory to a prudent lender, creating a first priority security interest in favor of Lender in the Defeasance Collateral (the “Defeasance Security Agreement”);
(B) direct non-callable obligations of the United States of America or, to the extent satisfying Rating Agency criteria, other obligations which are “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940 (and in connection therewith, Borrower hereby appoints Lender as its agent and attorney in fact for the purpose of purchasing the same) that provide for payments on a Business Day prior and as close as possible to each successive Payment Date (and the TrusteeMaturity Date) after the Defeasance Release Date through and including the Open Prepayment Date, at with each such payment being equal to or greater than the expense amount of the Company corresponding Monthly Payment Amount required to be paid (x) under this Agreement and the GuarantorNote in the case of a release of the Properties remaining subject to the Lien of any Mortgage (or the Undefeased Note if a Partial Defeasance has occurred previously), shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
or (ay) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyDefeased Note, in the opinion case of a nationally recognized firm of independent public accountants expressed in Partial Defeasance, as applicable, and all amounts necessary to pay the outstanding principal balance and all other amounts due and payable on the Open Prepayment Date (the “Defeasance Collateral”), duly endorsed by the holder thereof as directed by L▇▇▇▇▇ or accompanied by a written certification thereof delivered instrument of transfer in form and substance which would be satisfactory to the Trustee) a prudent lender (including, without consideration of any reinvestment limitation, such certificates, documents and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable instruments as may be required by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of depository institution holding such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company securities or the Guarantorissuer thereof, as the case may be, to effectuate book entry transfers and pledges through the book entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement the first priority security interest therein in favor of Lender in conformity with all applicable state and federal laws governing granting of such security interests;
(C) a certificate of Borrower certifying that all of the requirements set forth in this Section 2.8(a) have been satisfied;
(D) one or more opinions of counsel for Borrower in form and substance and delivered by counsel which would be reasonably satisfactory to a prudent lender stating, among other things, that (1) L▇▇▇▇▇ has a perfected first priority security interest in the Defeasance Collateral and that the Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, and (2) the release of the lien of the Mortgage and the pledge of Defeasance Collateral will not directly or indirectly result in or cause any REMIC Trust that holds the Note to fail to maintain its status as a party REMIC Trust;
(E) a certificate in form and scope which would be reasonably satisfactory to a prudent lender from an independent certified public accountant acceptable to Lender certifying that the Defeasance Collateral will generate amounts sufficient to make all payments of principal and interest due under this Agreement and the Note (including the scheduled outstanding principal balance of the Loan on the Open Prepayment Date);
(F) such other certificates, opinions, documents and instruments as a prudent lender would reasonably require; and
(G) in the event the Loan is held by a REMIC Trust and if required by L▇▇▇▇▇, L▇▇▇▇▇ has obtained a Rating Agency Confirmation.
(b) Upon compliance with the requirements of Section 2.8(a), either the Properties shall be released from the Lien of the Mortgages and the other Loan Documents (or, in the case of a Partial Defeasance pursuant to Section 15.1(c)(viii) hereof, the Defeased Property shall be released from the Lien of the applicable Mortgage and the other Loan Documents), and the Defeasance Collateral shall constitute collateral which shall secure the Note or the Defeased Note, as applicable, and all other obligations under the Loan Documents. Lender shall, at B▇▇▇▇▇▇▇’s expense, execute and deliver any agreements in form and substance reasonably satisfactory to Lender which are reasonably requested by which it is bound;Borrower to release the lien of the Mortgages and the other Loan Documents from the Properties or the Defeased Property, as applicable.
(c) no Default with respect As a condition to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders release of the Securities of such series will not recognize income, gain Properties or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05Defeased Property, as applicable, in accordance with respect to the Securities of such series Section 2.8, Borrower shall assign all its obligations and rights under this Agreement and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only Note or the obligations of the Company and the Guarantor in Sections 8.07 and 9.05Defeased Note, as applicable, together with the pledged Defeasance Collateral, to a successor single purpose entity designated and approved by Lender in its sole and absolute discretion (“Successor Borrower”). L▇▇▇▇▇’s right to designate and approve the Successor Borrower shall, at the sole option of Bank of America, N.A., be exercised by Bank of America, N.A. and shall survivebe retained by Bank of America, N.A. (or any successor or assign pursuant to an assignment of such retained rights separate and apart from the transfer or Securitization of all or any portion of the Loan), notwithstanding any transfer or Securitization of all or any portion of the Loan. Successor B▇▇▇▇▇▇▇ shall execute an assignment and assumption agreement in form and substance which would be reasonably satisfactory to a prudent lender pursuant to which it shall assume Borrower’s obligations under this Agreement, the Note (or the Defeased Note, as applicable) and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (i) deliver to Lender one or more opinions of counsel in form and substance and delivered by counsel which would be reasonably satisfactory to a prudent lender stating, among other things, that such assignment and assumption agreement is enforceable against Borrower and the Successor Borrower in accordance with its terms and that this Agreement, the Note (or the Defeased Note, as applicable), the Defeasance Security Agreement and the other Loan Documents, as so assigned and assumed, are enforceable against the Successor Borrower, and in the case of a Partial Defeasance, the Undefeased Note remains enforceable against Borrower, each in accordance with their respective terms, and opining to such other matters relating to Successor Borrower and its organizational structure as Lender may require, including, if required by Lender, a New Non-Consolidation Opinion from counsel to the Successor Borrower, and (ii) pay all fees, costs and expenses incurred by Lender or its agents and Successor Borrower in connection with such assignment and assumption (including, without limitation, reasonable legal fees and expenses and for the review of the proposed transferee and the preparation of the assignment and assumption agreement and related certificates, documents and instruments and any fees payable to any Rating Agencies and their counsel in connection with the issuance of the confirmation referred to above, and excluding any assumption fee which may otherwise be due pursuant to the other Loan Documents). Upon such assignment and assumption, Borrower and Guarantor shall be relieved of its obligations under this Agreement and the Note (or the Defeased Note, as applicable), the other Loan Documents and the Defeasance Security Agreement first arising from and after the Defeasance Release Date, except as expressly set forth in the assignment and assumption agreement, and with respect to Guarantor, except for any surviving obligations or liabilities under the Guaranty and Environmental Indemnity.
Appears in 1 contract
Defeasance. Except as provided below(a) If the State shall pay or cause to be paid, or here shall otherwise be paid, to the registered owners of the Bonds then Outstanding, the Company will principal amount and interest and Redemption Price, if any, to become due thereon, at the times and in the manner stipulated therein and in this Trust Agreement and if no Bond Related Costs then due and payable remain unpaid or payment of any such Costs has been provided for, then the pledge of the Pledged Funds and any other moneys and securities pledged by this Trust Agreement and all other rights granted by this Trust Agreement shall be discharged and satisfied. In such event, the Trustee shall, upon request of the State, execute and deliver to the State all such instruments as may be desirable to evidence such release and discharge and the Fiduciaries shall pay over or deliver to the State all moneys or securities held by them pursuant to this Trust Agreement which are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption or for the payment of any Bond Related Costs or for deposit to any Rebate Account with respect to any Series of Tax Exempt Bonds.
(b) Bonds or interest installments for the payment or redemption of which moneys shall be held by the Fiduciaries (through deposit by the State of funds for such payment or redemption or otherwise), whether at or prior to the maturity or the redemption date of such Bonds, shall be deemed to have been paid within the meaning and with the Company effect expressed in paragraph (a) of this Section 1101. All Outstanding Bonds of any Series or any part of a Series shall prior to the maturity or redemption date thereof be deemed to have been paid within the meaning and with the Guarantor will effect expressed in paragraph (a) of this Section 1101 if (i) in case any of said Bonds are to be discharged from redeemed on any and all obligations date prior to their maturity, an Authorized Officer shall have given to the Trustee, in respect form satisfactory to it, irrevocable instructions to provide, as provided in Article IV, notice of redemption on said date of such Bonds, (ii) there shall have been deposited with the Trustee in the Defeasance Account either moneys in an amount which shall be sufficient, or Defeasance Obligations not subject to redemption at the option of the Securities of any series and issuer thereof prior to the Guarantee due date thereof, as to which an irrevocable notice of redemption of such securities on a specified redemption date has been given and such securities are not otherwise subject to redemption prior to such specified date other than at the option of the holder thereof, or upon compliance with the provisions of subsection (e) of this Indenture will no longer be in effect with respect Section 1101 which are subject to the Securities of such series and the Guarantee thereof (and the Trustee, redemption prior to maturity at the expense option of the Company and issuer thereof on a specified date or dates, in each case the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on which when due will provide moneys which, together with the Securities moneys, if any, deposited with the Trustee at the time of deposit of such seriesDefeasance Obligations, money or U.S. Government Obligations or shall be sufficient, as certified by a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trusteeaccountants, to pay when due the principal amount or Redemption Price, if applicable, and discharge the Principal of interest due and accrued interest to become due on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory said Bonds on and prior to the Trustee), as the case may be;
(b) such deposit will not result in a breach redemption date or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantormaturity date thereof, as the case may be, and in the event said Bonds do not mature and are not by their terms subject to redemption within the next succeeding sixty (60) days, an Authorized Officer shall have given the Trustee in form satisfactory to it irrevocable instructions to provide, as soon as practicable, written notice to the registered owners of such Bonds that the deposit required by clause (ii) above has been made with the Trustee and that said Bonds are deemed to have been paid in accordance with paragraph (a) of this Section 1101 and stating the maturity or redemption date upon which moneys are to be available for the payment of the principal amount or Redemption Price, if applicable, on said Bonds. Neither Defeasance Obligations nor moneys deposited with the Trustee pursuant to this Section nor principal or interest payments on any such Defeasance Obligations shall be withdrawn or used for any purpose other than, and all of the same shall been held in trust for, the payment of the principal amount or Redemption Price, if applicable, and interest on said Bonds; provided, however that any cash received from the principal or interest payments on such Defeasance Obligations deposited with the Trustees if not then needed for such purpose, may, to the extent practicable be reinvested in Defeasance Obligations as directed by an Authorized Officer or, in lieu of such direction at the time of receipt, an Authorized Officer may authorize and direct the Trustee to enter into one or more forward purchase agreements providing for the purchase of Defeasance Obligations at future dates; provided, further, that if such amounts shall have been derived from the proceeds of any Tax Exempt Bonds or Bonds not issued hereunder which shall have been issued on the basis that the interest thereon is not includable in the gross income of the Holder thereof for federal income tax purposes, any such amounts may be reinvested, or any such forward purchase agreement may be executed only upon receipt by the Trustee of a party Bond Counsel’s Opinion that such reinvestment or forward purchase agreement shall not adversely affect the exclusion of the interest on such Tax Exempt Bonds or other Bonds from gross income for federal income tax purposes. Prior to authorizing the execution of any such forward purchase agreement, the State shall notify each Rating Agency then maintaining a rating on the Bonds or on any such other Bonds of its intention to do so. After the making of the payments for which such Defeasance Obligations or moneys were held, any surplus shall be promptly paid over to the State, as received by which it is bound;the Trustee, free and clear of any trust, lien or pledge or assignment securing the Bonds or otherwise existing under this Trust Agreement.
(c) no Default For purposes of determining whether Variable Rate Bonds shall be deemed to have been paid prior to the maturity or redemption date thereof, as the case may be, by the deposit of moneys, or Defeasance Obligations and moneys, if any, in accordance with subsection (b)(ii) hereof, the interest to come due on such Variable Rate Bonds on or prior to the maturity date or redemption date thereof, as the case may be, shall be calculated at the Variable Rate Ceiling if in effect with respect to the Securities of such series shall have occurred and be continuing Bonds; provided, however, that if on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize incomeany date, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 Variable Rate Bonds having borne interest at less than such Variable Rate Ceiling for any period, the total amount of moneys and will be subject to federal income tax Defeasance Obligations on deposit with the same Trustee for the payment of interest on such Variable Rate Bonds is in excess of the total amount and in the same manner and at the same times as which would have been required to be deposited with the case Trustee on such date in respect of such Variable Rate Bonds in order to satisfy the provisions of subsection (b)(ii) above, the Trustee shall, if requested by the State, pay promptly the amount of such deposit and defeasance had not occurred or (y) an Opinion of Counsel excess to the same effect as State free and clear of any trust, lien, pledge or alignment securing the ruling described Bonds or otherwise existing under this Trust Agreement.
(d) Tender Bonds shall be deemed to have been paid in clause accordance with subsection (xb)(ii) hereof only if, in addition to satisfying the requirements thereof, there shall have been deposited with the Trustee moneys in an amount which shall be sufficient to pay when due the maximum amount of principal of and premium, if any, and interest on such Bonds which could become payable to the registered owners of such Bonds upon the exercise of any options provided to the registered owners of such Bonds; provided, however, that if, at the time a deposit is made with the Trustee pursuant to the provisions of subsection (b)(ii) above; and, the options originally exercisable by the registered owner of Tender Bonds are no longer exercisable, such Bonds shall not be considered Tender Bonds for purposes of this Subsection (d). If any portion of the moneys deposited with the Trustee for the payment of the principal amount of and premium any, and interest on Tender Bonds is not required for such purpose the Trustee shall, if requested by the State, pay promptly the amount of such excess to the State free and clear of any trust, lien, pledge or assignment securing said Bonds or otherwise existing under this Trust Agreement.
(e) Defeasance Obligations described in subsection (b)(ii) above may be included in the Company has delivered Defeasance Obligations deposited with the Trustee in order to satisfy the requirements of subsection (b)(ii) above only if the determination as to whether moneys and Defeasance Obligations to be deposited with the Trustee in order to satisfy the requirements of such subsection (b)(ii) above would be sufficient to pay when due either on the maturity date thereof or, in the case of any Bonds to be redeemed prior to the maturity date thereof, on the redemption date or dates specified in any notice of redemption to be made by the Trustee or in the instructions to give a notice of redemption provided to the Trustee in accordance with subsection (b)(ii) above, the principal of or Redemption Price, if applicable, and interest on the Bonds which will be deemed to have been paid as provided in subsection (b)(ii) above is made both (i) on the assumption that the Defeasance Obligations described in subsection (b)(ii) above were not redeemed at the option of the issuer prior to the maturity date thereof and (ii) on the assumption that such Defeasance Obligations would be redeemed by the issuer thereof at its option on each date on which such Option could be exercised, that as of such date or dates interest ceased to accrue on such Defeasance Obligations and that the proceeds of such redemption would not be reinvested by the Trustee.
(f) In connection with the defeasance of any Bonds or portions thereof in accordance with this Section 1101, if such Bonds are to be paid at maturity, the State Treasurer shall, at the time of delivery to the Trustee of the Notice of Redemption or Defeasance specified in Section 504(c), also deliver a certificate to the Trustee, specifying whether or not, notwithstanding such defeasance, the State has waived its right to redeem such defeased Bonds prior to maturity.
(g) Anything in this Trust Agreement to the contrary notwithstanding any moneys held by the Fiduciary in trust for the payment and discharge of any Bonds which remain unclaimed for the applicable escheat period after the date when such Bonds have become due and payable, either at their stated maturity dates or by call for earlier redemption, if such moneys were held by the Fiduciary at such date, or for the applicable escheat period after the date of deposit of such moneys if deposited with the Fiduciary after the said date when such Bonds become due and payable, shall be paid to the State as its absolute property and free from trust, and the Fiduciary shall thereupon be released and discharged with respect thereto and the Bondholders shall look only to the State for the payment of such Bonds; provided, however, that before being required to make any such payment to the State, the Fiduciary shall, at the expense of the State, cause to be published at least twice, at an Officers’ Certificate and an Opinion interval of Counselnot less than seven (7) days between publications, in each case stating Authorized Newspapers, a notice that all conditions precedent provided for herein relating said moneys remain unclaimed it and that, after a date named in said notice, which date shall not be less than thirty (30) days after the date of the first publication of such notice, the balance of such moneys then unclaimed will be returned promptly to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveState.
Appears in 1 contract
Sources: Trust Agreement
Defeasance. Except (A) If the Issuer shall pay or cause to be paid, or there shall be otherwise paid or provision for payment made to or for the Bondholders the principal, premium, if any, and interest due or to become due thereon at the times and in the manner stipulated therein, and if the Issuer shall keep, perform and observe all the covenants and promises in the Bonds and in this Indenture expressed as to be kept, performed and observed by it or on its part, and shall pay or cause to be paid to the Trustee all sums of money due or to become due according to the provisions hereof, then this Indenture and the lien, rights and interests created hereby shall cease, determine and become null and void (except as to any surviving rights of payment, registration, transfer or exchange of Bonds herein provided belowfor), whereupon the Trustee upon written request of an Authorized Issuer Representative shall cancel and discharge this Indenture, and execute and deliver to the Issuer such instruments in writing as shall be requested by an Authorized Issuer Representative and requisite to discharge this Indenture, and release, assign and deliver unto the Issuer any and all the estate, right, title and interest in and to any and all rights assigned or pledged to the Trustee or otherwise subject to this Indenture, except amounts in the Bond Fund required to be paid to the Borrower under Section 6.15 hereof and except moneys or securities held by the Trustee for the payment of the principal of and premium, if any, and interest on, and purchase prices of, the Company will Bonds. Notwithstanding the foregoing, under no circumstances may the Issuer or the Borrower receive any funds derived from a draw on any Letter of Credit, Liquidity Facility, Bond Insurance or moneys held for the payment of particular Bonds.
(B) Any Bond or Authorized Denomination thereof shall be deemed to be paid within the meaning of this Indenture when (a) payment of the principal of and premium, if any, on such Bond or Authorized Denomination thereof, plus interest thereon to the due date thereof (whether such due date is by reason of maturity or upon redemption as provided herein) either (i) shall have paid been made or caused to be made in accordance with the terms thereof, (ii) shall have been provided for by depositing sufficient amounts as described in clause (1) and/or (2) below for such payment with the Trustee and the Company due date of such principal, interest and premium, if any, has occurred, or (iii) in the case of a Bond which bears interest at a Flexible Rate or a Term Rate, shall have been provided for by irrevocably depositing with the Trustee in trust and irrevocably setting aside exclusively for such payment on such due date (which due date shall be in the case of a Bond bearing interest at a Flexible Rate no later than the Interest Payment Date for the then current Flexible Segment for such Bond and in the case of a Bond bearing interest at a Term Rate no later than the last Interest Payment Date for the then current Term Rate Period for such Bond):
(1) cash (insured at all times by the Federal Deposit Insurance Corporation or otherwise collateralized with obligations described in clause (2) following), or
(2) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America maturing as to principal and interest in such amount and at such time as will insure the availability of sufficient moneys to make such payment, and (b) all necessary and proper fees, compensation and expenses of the Trustee pertaining to any such deposit shall have been paid or the payment thereof provided for to the satisfaction of the Trustee; provided, however, that no Bond shall be deemed paid pursuant to this Article VIII prior to the due date for the payment of principal, premium if any, and interest thereon unless there shall have been delivered an opinion of Bond Counsel to the effect that such treatment will not adversely affect the Tax-Exempt status of any Bonds hereunder and will not cause such Bonds to be treated as sold or otherwise disposed of for the purposes of Section 1001 of the Code (or any successor provision). At such times as a Bond or Authorized Denomination thereof shall be deemed to be paid hereunder, as aforesaid, such Bond or Authorized Denomination thereof shall no longer be secured by or entitled to the benefits of this Indenture (other than Sections 2.04 and 2.08 hereof in the case of a deposit under clause (a)(iii) above), except for the purposes of any such payment from such moneys or government obligations referred to in clause (2) above.
(C) Notwithstanding the foregoing paragraph, in the case of a Bond or Authorized Denomination thereof which by its terms may be redeemed prior to the stated maturity thereof, no deposit under clause (a)(iii) of the immediately preceding paragraph shall be deemed a payment of such Bond or Authorized Denomination thereof as aforesaid until: (a) proper notice of redemption of such Bond or Authorized Denomination thereof shall have been previously given in accordance with Article III of this Indenture, or in the event said Bond or Authorized Denomination thereof is not to be redeemed within the succeeding seventy-five (75) days, until the Borrower shall have given the Trustee on behalf of the Issuer, in form satisfactory to the Trustee, irrevocable instructions to notify, as soon as practicable, the Owner of such Bond or Authorized Denomination thereof in accordance with Article III hereof, that the deposit required by (a)(iii) above has been made with the Trustee and that said Bond or Authorized Denomination thereof is deemed to have been paid in accordance with this Article and stating the maturity or redemption date upon which moneys are to be available for the payment of the principal of and the Guarantor will be discharged from applicable premium, if any, on said Bond or Authorized Denomination thereof, plus interest thereon to the due date thereof, or (b) the maturity of such Bond or Authorized Denomination thereof.
(D) Notwithstanding any and all obligations in respect of the Securities provision of any series and the Guarantee thereof, and other Article of this Indenture which may be contrary to the provisions of this Indenture will no longer Article, all moneys or government obligations set aside and held in trust pursuant to the provisions of this Article for the payment of Bonds or Authorized Denominations thereof (including interest and premium thereon, if any) shall be in effect applied to and used solely for the payment of the particular Bonds or Authorized Denominations thereof (including interest and premium thereon, if any) with respect to which such moneys and government obligations have been so set aside in trust.
(E) Notwithstanding anything herein to the Securities of such series contrary, in the event that the principal and/or interest due on the Bonds shall be paid by the Bond Insurer pursuant to the Bond Insurance, the Bonds shall remain Outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, and the Guarantee thereof (assignment and the Trustee, at the expense pledge of the Company Trust Estate and all covenants, agreements and other obligations of the Guarantor, Issuer to the registered owners shall execute proper instruments acknowledging the same); provided that the following conditions continue to exist and shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for run to the benefit of the Holders Bond Insurer, and the Bond Insurer shall be subrogated to the rights of such registered owners.
(F) Anything in Article XI hereof to the contrary notwithstanding, if moneys or government obligations have been deposited or set aside with the Trustee pursuant to this Article for the payment of Bonds or Authorized Denominations thereof and the interest and premium, if any, thereon and such Bonds or Authorized Denominations thereof and the interest and premium, if any, thereon shall not have in fact been actually paid in full, no amendment to the provisions of this Article shall be made without the consent of the Securities Owner of such series, for payment each of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveBonds affected thereby.
Appears in 1 contract
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and the Company and the Guarantor will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Covenant Defeasance”);
(a) the Company or Issuer shall have irrevocably pledged to the Guarantor has irrevocably deposited in trust with the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government obligations accepted by the Securities of Bond Trustee (the “Defeasance Pledge”) in such series, amounts as will be sufficient for the payment of the Principal principal (including if applicable premium payable upon exercise of a Call Option) and interest on the Securities of such series, money Outstanding Bonds to Maturity Date (or U.S. Government Obligations or redemption upon a combination thereof sufficient (unless such funds consist solely of money, in the opinion exercise of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trusteenotified Call Option), as the case may be;
(b) such deposit will not result in the Issuer shall, if required by the Bond Trustee, provide a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect legal opinion reasonable acceptable to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Bond Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series Bondholders will not recognize income, gain or loss for federal income tax purposes (hereunder US federal or Norwegian, if applicable) as a result of such discharge under this Section 9.02 the Defeasance Pledge and Covenant Defeasance, and will be subject to federal such income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance the Defeasance Pledge had not occurred;
(c) no Event of Default shall have occurred and be continuing on the date of establishment of the Defeasance Pledge, or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 181st day after the date of establishment of the pledge;
(yd) an Opinion neither the Defeasance Pledge nor the Covenant Defeasance results in a breach or violation of Counsel to any material agreement or instrument binding upon the same effect as Issuer, or the ruling described in clause (x) above; andarticles of association or other corporate documents governing the Issuer;
(e) the Company has Issuer shall have delivered to the Bond Trustee an Officers’ Certificate a certificate signed by its Chief Executive Officer that the Defeasance Pledge was not made by the Issuer with the intent of preferring the Bondholders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(f) the Issuer shall have delivered to the Bond Trustee any certificate or legal opinion reasonably required regarding the Covenant Defeasance or Defeasance Pledge (including certificate from its Chief Executive Officer and an Opinion of Counsel, in each case stating a legal opinion from its legal counsel to the effect that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series Covenant Defeasance have been complied with. The obligations ); and that the Defeasance Pledge (i) will not be subject to any rights of creditors of the Company Issuer, (ii) will constitute a valid, perfected and enforceable security interest in favour of the Bond Trustee for the benefit of the Bondholders, and (iii) will, after the 181st day following the establishment, the funds and assets so pledged will not be subject to the effects of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally under the laws of the jurisdiction where the Defeasance Pledge was established and the Guarantor corporate domicile of the Issuer.
18.2.2 Upon the exercise by the Issuer of its option under Clause 18.2.1;
(a) the Issuer and any Group Company shall be released from their obligations under all provisions in Sections 2.02 through 2.12Clause 13, 4.02except 13.2.1 (a), 8.07(e), 8.08(h) and (i).
(b) the Issuer shall not (and shall ensure that all Group Companies shall not) take any actions that may cause the value of the Security Interest created by this Covenant Defeasance to be reduced, 9.04 and 9.05shall at the request of the Bond Trustee execute, or cause to be executed, such further documentation and perform such other acts as applicablethe Bond Trustee may reasonably require in order for the Security Interests to remain valid, enforceable and perfected by the Bond Trustee for the account of the Bondholders;
(c) any Security Interests other than the Defeasance Pledge shall be discharged, and the Bond Trustee shall take all steps reasonably possible for it to cause such discharge to be effected, by way of deletion of the relevant Security Document from the relevant register, notice to third parties or as otherwise required;
(d) all other provisions of this Bond Agreement (except (a) – (c) above) shall remain fully in force without any modifications.
18.2.3 All moneys amount covered by the Defeasance Pledge shall be applied by the Bond Trustee, in accordance with respect the provisions of this Bond Agreement, to the Securities payment to the Bondholders of such series all sums due to them under this Bond Agreement on the due date thereof. Any excess funds not required for the payment of principal, premium and interest to the Guarantee thereof Bondholders (including any expenses, fees etc. due to the Bond Trustee hereunder) shall survive until such Securities are no longer outstanding. Thereafter, only be returned to the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveIssuer.
Appears in 1 contract
Sources: Bond Agreement
Defeasance. Except as provided belowIf such Mortgage Loan is a Defeasance Loan, the Company will be deemed related Mortgage Loan documents require the related Mortgagor to have paid and pay all reasonable costs associated with the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee defeasance thereof, and either: (A) require the provisions prior written consent of, and compliance with the conditions set by, the holder of this Indenture will no longer be in effect with respect such Mortgage Loan for defeasance, (B) require that (1) defeasance may not occur prior to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense second anniversary of the Company and the GuarantorClosing Date, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a2) the Company Defeasance Collateral must be government securities within the meaning of Treasury regulation section 1.860G-2(a)(8)(i) and must be sufficient to make all scheduled payments under the related Mortgage Note when due (assuming for each ARD Mortgage Loan that it matures on its Anticipated Repayment Date or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneydate when any open prepayment period set forth in the related Mortgage Loan documents commences) or, in the opinion case of a nationally recognized partial defeasance that effects the release of a material portion of the related Mortgaged Property, to make all scheduled payments under the related Mortgage Note on that part of such Mortgage Loan equal to at least 115% of the allocated loan amount of the portion of the Mortgaged Property being released, (3) an independent accounting firm of (which may be the Mortgagor's independent public accountants expressed in accounting firm) certify that the Defeasance Collateral is sufficient to make such payments, (4) the Mortgage Loan be assumed by a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable successor entity designated by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities holder of such series to maturity or earlier redemption Mortgage Loan, and (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b5) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service counsel provide an opinion letter to the effect that the Holders Trustee has a perfected security interest in such Defeasance Collateral prior to any other claim or interest, or (C) if such Mortgage Loan has a Cut-off Date Balance in excess of $15,000,000, provide that the Securities defeasance of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be Mortgage Loan is subject to federal income tax on rating confirmation by the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveRating Agencies.
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Structured Asset Sec Corp Comm Mort Pas THR Cert Ser 2002-C2)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) Provided that no Event of Default has occurred and is continuing, after the Company or earlier to occur of (i) two (2) years after the Guarantor has irrevocably deposited in trust with Start-Up Day and (ii) three (3) years after the Trustee as trust funds solely for the benefit Closing Date, Borrower may voluntarily defease all of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;Loan.
(b) such deposit will not result in Any defeasance of the Loan by Borrower shall be made on a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;Payment Date.
(c) no Default with respect Borrower shall not be permitted at any time to defease all or any part of the Securities of such series shall have occurred and be continuing on the date of such deposit;Loan except as expressly provided in this Section 2.6.
(d) the Company shall have delivered Subject to the Trustee either terms and conditions of this Agreement, Borrower may defease the Loan if Borrower: (i) provides not less than fifteen (15) days prior written notice to Lender specifying a Payment Date (the “Defeasance Release Date”) on which the payments provided in clauses (ii), (iii) and (iv) below are to be made and the deposit provided in clause (v) below is to be made, (ii) pays all interest accrued and unpaid on the Principal Indebtedness to and including the Defeasance Release Date, (iii) pays all reasonable fees and expenses associated with the defeasance of the Loan (including, without limitation, fees of Rating Agencies and accountants, and fees incurred in connection with the delivery of opinion letters related to such defeasance) and all other sums then due and payable under the Loan Documents, (iv) deposits with Lender an amount equal to the Defeasance Deposit or at Lender’s request delivers to Lender all the U.S. Obligations (A) having maturity dates on or prior to, but as close as possible to, successive scheduled Payment Dates (after the Defeasance Release Date) upon which Payment Dates interest and principal payments are required under the Note through and including the Maturity Date and (B) in amounts sufficient to pay all scheduled principal and interest payments on the Note on each Payment Date through and including the Maturity Date and any tax payable in respect of income earned by Borrower or Successor Obligor from such U.S. Obligations, and (v) delivers to Lender (A) a security agreement, in form and substance satisfactory to Lender, creating a first priority perfected Lien on the deposits required pursuant to this Section 2.6 and the U.S. Obligations purchased on behalf of Borrower in accordance with this Section 2.6 (the “Security Agreement”), (B) for execution by Lender, a release of the Property from the lien of the Mortgage in a form appropriate for the jurisdiction in which the Property is located, (C) an Officer’s Certificate of Borrower certifying that the requirements set forth in this Section 2.6 have been satisfied including, without limitation, that no Event of Default has occurred and is continuing, (D) an opinion of Borrower’s counsel in form and substance satisfactory to Lender stating, among other things, (x) that, the U.S. Obligations have been duly and validly assigned and delivered to Lender and Lender has a ruling directed first priority perfected security interest in and Lien on the deposits required pursuant to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 2.6 and will be subject to federal income tax a first priority perfected security interest in and Lien on the same amount U.S. Obligations purchased pursuant hereto and in the same manner Proceeds thereof and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion that the defeasance will not adversely affect the status of Counsel to the same effect any REMIC formed in connection with a Secondary Market Transaction, and (E) such other certificates, documents or instruments as the ruling described in clause Lender may request including, without limitation, (x) above; andwritten confirmation from the relevant Rating Agencies that such defeasance will not cause any Rating Agency to withdraw, qualify or downgrade the then-applicable rating on any security issued in connection with any Secondary Market Transaction and (y) a certificate from an Independent certified public accountant certifying that the amounts of the U.S. Obligations comply with all of the requirements of this Agreement.
(e) the Company has delivered The U.S. Obligations shall mature on or be redeemable, or provide for payment thereon, on or prior to the Trustee an Officers’ Certificate Business Day immediately preceding the date on which payments under the Note are due and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating payable and the proceeds thereof shall be payable directly to the defeasance contemplated by this Section 9.02 Cash Collateral Account. In connection with the foregoing, Borrower appoints Lender as Borrower’s agent for the purpose of applying the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect amounts delivered pursuant to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.clause (d) above to purchase U.S.
Appears in 1 contract
Defeasance. Except as provided belowThe Owner Trustee may, at any time, defease the Company will interest of the Indenture Trustee in the Indenture Estate in whole, but not in part, through the deposit with the Defeasance Trustee, in accordance with the provisions of this Section 10.05, of cash and/or Government Obligations; provided, however, that such defeasance shall not be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations applicable in respect of the Securities Series SWA 1995 Trust N605SW-I Certificates. Such deposit shall be made pursuant to a declaration or other appropriate instrument of any series trust satisfactory in form and substance to the Defeasance Trustee and the Guarantee thereofIndenture Trustee; such deposit shall be absolute and irrevocable and the instrument of trust shall expressly provide that the Owner Trustee shall have no further title to or interest in or power to direct the use or application of the cash and/or Government Obligations so deposited or any of the proceeds arising therefrom; such instrument shall state that the trust created thereby and the cash and/or Government Obligations deposited pursuant thereto are for the sole and exclusive benefit of the Holders and shall expressly provide that the Defeasance Trustee shall apply such cash and payments of principal and/or interest on such Government Obligations to, and only to, the punctual payment of the principal and interest on the Certificates as and when such payments become due (such declaration or instrument to contain appropriate provisions for the recording of this transfers of Certificates and the names and addresses of the Holders); and the Owner Trustee shall agree to pay, as the same shall become due and payable, all fees, costs and charges of the Defeasance Trustee under such instrument of trust, including those which may become payable after the date the conditions hereinbelow specified have been met. Upon compliance with the following conditions, and provided, that no Indenture will no longer Event of Default or Indenture Default shall have occurred and be continuing on a date 91 days after the date of the deposit of Government Obligations and/or cash with the Defeasance Trustee as provided in effect Subsection A below, the Owner Trustee's obligations with respect to the Securities Certificates will be discharged and this Indenture shall terminate as provided in Section 10.01:
A. the Owner Trustee shall have deposited with the Defeasance Trustee absolutely and irrevocably (irrespective of such series whether the conditions in Subsections B, C, D and the Guarantee thereof (and the Trustee, at the expense E of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall this Section 10.05 have been satisfied:)
(a1) cash and/or (2) Government Obligations which through the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by in accordance with their terms, without any reinvestment or further investment of the Trusteeprincipal of or interest earned on such Government Obligations, will absolutely and unconditionally provide in any and all circumstances not later than one day before each Payment Date an amount sufficient to pay and discharge the Principal payment of principal and accrued interest to be due and payable on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bePayment Date;
(b) such deposit will not result in a breach B. no Indenture Event of Default or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company deposit of cash and/or Government Obligations as contemplated hereby; TRUST INDENTURE AND SECURITY AGREEMENT [N605SW] -48- 55 C. the Owner Trustee shall have delivered to the Defeasance Trustee either (x) a ruling directed and to the Trustee received from Certificate Holders written confirmation by a nationally recognized firm of independent public accountants (other than the Internal Revenue Service accounting firm then serving as Shawmut Bank Connecticut, National Association's or the Owner Participant's regular auditors) selected by the Owner Trustee, the form and substance of which confirmation and the identity of such accounting firm shall be satisfactory to the effect Indenture Trustee, that the Holders Government Obligations deposited for payment of the Securities Certificates, together with any cash deposited by the Owner Trustee, are sufficient to satisfy the requirements of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.Subsection A hereof;
Appears in 1 contract
Sources: Trust Indenture and Security Agreement (Southwest Airlines Co)
Defeasance. Except as provided below[The provisions of Sections 403 and 1006 of the Indenture relating to defeasance shall apply to the Designated Securities.] [OTHER TERMS]*: -------- * A description of particular tax, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect accounting or other unusual features of the Securities should be set forth, or referenced to an attached and accompanying description, if necessary, to the issuer's understanding of any series and the Guarantee thereof, and the provisions of this Indenture will no longer transaction contemplated. Such a description might appropriately be in the form in which such features will be described in the Prospectus Supplement for the offering. 3 ANNEX II Pursuant to Section 7(d) of the Underwriting Agreement, Deloitte & Touche LLP shall furnish letters to the Underwriters to the effect that: (i) They are independent certified public accountants with respect to the Securities Company and its subsidiaries within the meaning of such series the Act and the Guarantee thereof applicable published rules and regulations thereunder; (ii) In their opinion, the financial statements and any supplementary financial information and schedules audited by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act or the Exchange Act, as applicable, and the Trusteerelated published rules and regulations thereunder; (iii) The unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included in the Prospectus and included or incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for five such fiscal years which were included or incorporated by reference in the Company's Annual Reports on Form 10-K for such fiscal years; (iv) On the basis of limited procedures, at not constituting an audit in accordance with generally accepted auditing standards, consisting of a reading of the expense unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and the Guarantorits subsidiaries, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit inspection of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations minute books of the Company and its subsidiaries since the Guarantor date of the latest audited financial statements included or incorporated by reference in Sections 2.02 through 2.12the Prospectus, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities inquiries of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that: (A) the Guarantor unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included or incorporated by reference in Sections 8.07 the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and 9.05the related published rules and regulations thereunder or are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with the basis for the audited consolidated statements of income, as applicableconsolidated balance sheets and consolidated statements of cash flows included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (B) any other unaudited income statement data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, shall survive.and any such unaudited data and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (C) the unaudited financial statements which were not included in the Prospectus but from which were derived any unaudited income statement data and balance sheet items included in the Prospectus and referred to in Clause (B) were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year;
Appears in 1 contract
Defeasance. Except as provided below, the Company (a) The Issuer and Exide Parent will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, Notes and the provisions of this Indenture the Paying Agency Agreement will no longer be in effect with respect to the Securities of such series and Notes on the Guarantee thereof (and 123rd day after the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:deposit described below if,
(a1) the Company or the Guarantor Issuer has irrevocably deposited in trust with the Trustee as trust funds solely for Paying Agents, in trust, money and/or Federal Republic of Germany Obligations that through the benefit of the Holders of the Securities of such series, for payment of the Principal of interest and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments principal in respect thereof payable by the Trustee, in accordance with their terms will provide money in an amount sufficient to pay and discharge the Principal of principal of, premium, if any, and accrued interest on the outstanding Securities Notes on the Stated Maturity of such series to maturity or earlier redemption payments in accordance with the terms of the Paying Agency Agreement and the Notes,
(irrevocably provided for under arrangements satisfactory 2) the Issuer has delivered to the Trustee)Paying Agents (i) either an Opinion of Counsel to the effect that Holders will not recognize income, gain or loss for federal income tax purposes as a result of the Issuer's exercise of its option under this Section 8(a) and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred, which Opinion of Counsel must be accompanied by a ruling of the IRS to the same effect or a change in applicable U.S. federal income tax law after the date of the Paying Agency Agreement or a ruling directed to the Paying Agents received from the IRS to the same effect as the case may be;aforementioned Opinion of Counsel and (ii) an Opinion of Counsel to the effect that the creation of the defeasance trust does not violate the Investment Company Act of 1940 and after the passage of 123 days following the deposit, the trust fund will not be subject to the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law,
(b3) immediately after giving effect to such deposit will on a pro forma basis, no Event of Default, or event that after the giving of notice or lapse of time or both would become an Event of Default, shall have occurred and be continuing on the date of such deposit or during the period ending on the 123rd day after the date of such deposit, and such deposit shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, Issuer is a party or by which it the Issuer is bound;,
(c4) no Default with respect to if at such time the Securities of such series shall have occurred and be continuing Notes are listed on a national securities exchange, the date of such deposit;
(d) the Company shall have Issuer has delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service Paying Agents an Opinion of Counsel to the effect that the Holders Notes will not be delisted as a result of such deposit, defeasance and discharge, and
(5) the Issuer has delivered to each Paying Agent an Officer's Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of the Securities Issuer's obligations under the Notes and the Paying Agency Agreement have been complied with. Notwithstanding the foregoing, the Issuer's obligations in Sections 3, 4, 6, 9, 11, 12, 13, and 15 of the Paying Agency Agreement shall survive until the Notes mature or are redeemed. After such deposit, the Paying Agents upon request shall acknowledge in writing the discharge of the Issuer's obligations under this Note, and the Paying Agency Agreement except for those surviving in the immediately preceding paragraph.
(b) The provisions of the Notes will no longer be in effect with respect to clauses (iii) and (iv) of Section 5, the covenants contained in Section 7, Section 6(a)(3) hereof with respect to such covenants and clauses (iii) and (iv) of Section 5 and clauses (a)(4), (a)(5) and (a)(9) of Section 6 hereof shall be deemed not to be Events of Default, upon, the deposit with the Paying Agents in trust, of money and/or Federal Republic of Germany Obligations that through the payment of interest and principal in respect thereof in accordance with their terms will provide money in an amount sufficient to pay the principal of, premium, if any, and accrued interest on the Notes on the Stated Maturity of such series payments in accordance with the terms of the Paying Agency Agreement and the Notes, the satisfaction of the provisions described in clauses (2)(ii), (3), (4) and (5) of the preceding section and the delivery by the Issuer to the Paying Agents of an Opinion of Counsel to the effect that, among other things, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 deposit and defeasance of certain covenants and Events of Default and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred occurred. In the event the Issuer exercises its option to omit compliance with certain covenants and provisions of the Paying Agency Agreement or (y) an Opinion of Counsel to the same effect Notes as the ruling described in clause (x) above; and
(e) the Company has delivered to immediately preceding paragraph and the Trustee an Officers’ Certificate Notes are declared due and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 payable because of the Securities occurrence of such series have been complied with. The obligations an Event of Default that remains applicable, and the amount of money and/or Federal Republic of Germany Obligations on deposit with the Paying Agents are sufficient to pay amounts due on the Notes at the time of their Stated Maturity but not sufficient to pay amounts due on the Notes at the time of the Company and acceleration resulting from such Event of Default, the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of Issuer shall remain liable for such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivepayments.
Appears in 1 contract
Defeasance. Except as provided below, the Company will Any Bond shall be deemed to be no longer Outstanding when payment of the principal of such Bond, plus interest thereon to the Maturity thereof (whether such Maturity be by reason of the Stated Maturity thereof or giving of notice redemption therefor, if notice of such redemption has been given or waived or irrevocable arrangements therefor satisfactory to the Trustee have paid been made) shall have been provided for by depositing for such payment from funds of the Issuer under the terms provided in this Section (1) money sufficient to make such payment or (2) money and Governmental Obligations certified to the Trustee and the Company Issuer by an independent accountant of national reputation to mature as to principal and interest in such amounts and at such times as shall, without further investment or reinvestment of either the Guarantor will principal amount thereof or the interest earnings therefrom be discharged from any sufficient to make such payment, provided that all necessary and all obligations in respect proper fees, compensation, and expenses of the Securities of any series Trustee and Paying Agents pertaining to the Guarantee thereof, and the provisions of this Indenture will no longer be in effect Bonds with respect to which such deposit is made shall have been paid or the Securities payment thereof provided for to the satisfaction of the Trustee. Any such deposit shall be made either with the Trustee or, if notice of such series and the Guarantee thereof (and deposit is given to the Trustee, with a state or nationally chartered bank with a minimum combined capital and surplus of $50,000,000, as escrow agent, with irrevocable instructions to transfer the amounts so deposited and investment income therefrom to the Trustee or the Paying Agents in the amounts and at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal times required to pay principal of and interest on the Securities Bonds with respect to which such deposit is made at the Maturity thereof and of such series, money interest or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)Stated Maturity, as the case may be;
(b) . In the event such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default made with respect to some but not all of the Securities Bonds then Outstanding, the Trustee shall select the Outstanding Bonds in the same manner as provided in Section 4.03 for the selection of Bonds to be redeemed. Notwithstanding anything herein to the contrary however, no such series deposit shall have occurred the effect hereinabove described (1) if made during the existence of default hereunder of which the Trustee has received written notice unless made with respect to all of the Bonds then Outstanding and (2) unless there shall be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to that such deposit shall not adversely affect any exemption from federal income taxation of interest on any Bond. Any money and Governmental Obligations deposited with the Trustee an Officers’ Certificate and an Opinion of Counsel, for such purpose shall be held by the Trustee in each case stating that all conditions precedent provided a segregated account in trust for herein relating to the defeasance contemplated by this Section 9.02 Holders of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, Bonds with respect to which such deposit is made and together with any investment income therefrom, shall be disbursed solely to pay the Securities principal of and interest on the Bonds when due. No money or Governmental Obligations so deposited pursuant to this Section shall be invested or reinvested unless in Governmental Obligations and unless such money not invested, such Governmental Obligations not reinvested, and such new investments are together certified by an independent accountant of national reputation to be of such series amounts, maturities, and interest payment dates and to bear such interest as will, without further investment or reinvestment of either the Guarantee principal amount thereof or the interest earnings therefrom, be sufficient to make such payment. At such times as a Bond shall survive until such Securities are be deemed to be paid hereunder, as aforesaid, it shall no longer outstanding. Thereafterbe secured by or entitled to the benefits of this Indenture, only the obligations except for purposes of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveany such payment from such money or Governmental Obligations.
Appears in 1 contract
Defeasance. Except as provided below(a) Provided no Event of Default shall have occurred and be continuing, Borrower shall have the right at any time after the Release Date and prior to the Maturity Date to voluntarily defease the entire Loan and obtain a release of the lien of the Security Instrument by providing Lender with the Total Defeasance Collateral (hereinafter, a “Total Defeasance Event”), subject to the satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (or such shorter period of time if permitted by Lender in its reasonable discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which the Total Defeasance Event is to occur;
(ii) Unless otherwise agreed to in writing by ▇▇▇▇▇▇, Borrower shall pay to Lender (A) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the next occurring Monthly Payment Date); (B) all other sums, if any, due and payable under the Note, this Agreement, the Company will be deemed to have paid Security Instrument and the Company other Loan Documents through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (C) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Defeasance Collateral and the Guarantor will be discharged from preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (D) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Total Defeasance Event;
(iii) Borrower shall deposit the Total Defeasance Collateral into the Defeasance Collateral Account and all obligations otherwise comply with the provisions of Section 2.8(d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Securities of any series Defeasance Collateral Account and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beTotal Defeasance Collateral;
(bv) such deposit Borrower shall deliver to Lender (i) an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (A) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral; (B) the Total Defeasance Event will not result in a breach deemed exchange for purposes of the IRS Code and will not adversely affect the status of the Note as indebtedness for federal income tax purposes; and (C) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or violation of, or constitute applicable state law; and (ii) a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default REMIC Opinion with respect to the Securities of such series shall have occurred Total Defeasance Event; and be continuing on the date of such deposit(iii) a New Non-Consolidation Opinion with respect to Successor Borrower;
(dvi) the Company Borrower shall have delivered deliver to Lender a Rating Agency Confirmation as to the Trustee either Total Defeasance Event;
(xvii) a ruling directed to the Trustee received from the Internal Revenue Service to the effect Borrower shall deliver an Officer’s Certificate certifying that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under requirements set forth in this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would 2.8 have been satisfied;
(viii) Borrower shall deliver a certificate of a nationally recognized public accounting firm acceptable to Lender certifying that the case if such deposit and defeasance had not occurred Total Defeasance Collateral will generate monthly amounts equal to or (y) an Opinion of Counsel to greater than the same effect as the ruling described in clause (x) aboveScheduled Defeasance Payments; and
(eix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request.
(b) If ▇▇▇▇▇▇▇▇ has elected to defease the Company has delivered entire Loan and the requirements of this Section 2.8 have been satisfied, the Property shall be released from the lien of the Security Instrument and the Total Defeasance Collateral pledged pursuant to the Trustee an Officers’ Certificate and an Opinion Security Agreement shall be the sole source of Counselcollateral securing the Loan. In connection with the release of the lien, in each case stating that all conditions precedent provided for herein relating Borrower shall submit to Lender, not less than thirty (30) days prior to the defeasance contemplated Total Defeasance Date (or such shorter time as is acceptable to Lender in its reasonable discretion), a release of lien (and related Loan Documents) for execution by this Section 9.02 ▇▇▇▇▇▇. Such release shall be in a form appropriate in the jurisdiction in which the Property is located and that contains standard provisions protecting the rights of the Securities releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of such series have been complied withthis Agreement. The obligations Except as set forth in this Article 2, no repayment, prepayment or defeasance of all or any portion of the Company and Loan shall cause, give rise to a right to require, or otherwise result in, the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations release of the Company and lien of the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveSecurity Instrument.
Appears in 1 contract
Sources: Loan Agreement (Clipper Realty Inc.)
Defeasance. Except as provided belowAt any time during the Defeasance Period, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect Borrower may obtain a release of the Securities of any series and Property from the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense lien of the Company Mortgage and other Loan Documents upon the Guarantor, shall execute proper instruments acknowledging the same); provided that satisfaction of the following conditions shall have been satisfiedconditions:
(a) Not less than thirty (30) days’ prior written notice shall be given to Lender specifying a date (the Company or “Defeasance Date”) on which the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Defeasance Deposit is to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bebe delivered;
(b) such deposit will not result All accrued and unpaid interest on the Loan and all other sums due hereunder and under the other Loan Documents up to the Defeasance Date, including, without limitation, all amounts payable pursuant to Section 2.5(f) hereof, shall be paid in a breach full on or violation of, or constitute a default under, this Indenture or any other material agreement or instrument prior to which the Company or the Guarantor, as the case may be, is a party or by which it is boundDefeasance Date;
(c) no Default with respect to the Securities No Event of such series Default, shall have occurred and be continuing either at the time Borrower gives notice of the Defeasance Date to Lender or on the date of such depositDefeasance Date;
(d) On or before the Company Defeasance Date, Borrower shall have deliver (or cause to be delivered) to Lender each of the following:
(i) the Defeasance Deposit, together with the amount required by Section 2.5(f) hereof;
(ii) the Defeasance Security Agreement, duly executed by Borrower, together with an endorsement of the Defeasance Collateral by the holder thereof as directed by Lender (or a written instrument of transfer in form and substance wholly satisfactory to Lender (including, without limitation, such instruments as may be required by the depository institution holding such securities to effectuate book-entry transfers and pledges through the book-entry facilities of such institution)) sufficient so as to create a first priority security interest therein in favor of Lender in conformity with any applicable state and federal laws governing granting of such security interests;
(iii) an opinion of counsel for Borrower, in form and substance (and delivered by counsel) satisfactory to Lender in its sole discretion stating, among other things, (w) that Lender has a perfected first priority security interest in the Trustee either Defeasance Deposit and the Defeasance Collateral, (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, (y) that the Defeasance will not (1) cause the Trust to fail to qualify as a REMIC within the meaning of Section 860D of the Securities of such series will not recognize income, gain or loss for federal income tax purposes Code as a result of such discharge under this Defeasance, (2) constitute a “significant modification” of the Loan within the meaning of Treasury Regulation Section 9.02 1.1001-3(b) or cause the Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Code, (3) result in a deemed exchange for purposes of the Code and will be subject to not adversely affect the status of the Note as indebtedness for federal income tax purposes, and (4) constitute an avoidable preference under Section 547 of the Bankruptcy Code, or similar provisions of any applicable state law, and (z) if a Non-Consolidation Opinion was delivered in connection with the closing of the Loan, setting forth such comparable opinions as to Successor Borrower as Lender shall reasonably require (or as shall be required to satisfy the Securitization Documents);
(iv) a Rating Confirmation from each of the applicable Rating Agencies for any securities issued in connection with a Secondary Market Transaction;
(v) a certificate in form and substance acceptable to Lender, from a nationally-recognized firm of independent certified public accountants acceptable to Lender and satisfying the requirements of the Securitization Documents, certifying that the Defeasance Collateral is sufficient to generate monthly amounts equal to or greater than the payments due on all successive Payment Dates occurring after the Defeasance Date through and including the Maturity Date, with each such payment being equal to or greater than (1) the Monthly Payment Amount due on such Payment Date, and (2) with respect to the payment due on the same amount Maturity Date, the entire outstanding principal balance of the Loan together with any interest accrued as of such date and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel all other amounts payable pursuant to the same effect as Loan Documents on such date;
(vi) if required to comply with the ruling described in clause (x) aboverequirements of any Securitization Documents, a certification of Borrower and Guarantor that the purpose of the defeasance is to facilitate the disposition of the Property, the refinancing of the Property or any other customary commercial transaction, and is not part of an arrangement to collateralize a REMIC offering with obligations that are not real estate mortgages; and
(vii) such other certificates, opinions, documents or instruments as Lender may reasonably require to satisfy any conditions of the Securitization Documents.
(e) As part of the Company has Defeasance, Borrower shall assign all its obligations and rights in, to and under the Note, the Defeasance Collateral and the Defeasance Security Agreement to a successor entity acceptable to Lender (“Successor Borrower”). In connection therewith, the Successor Borrower shall execute an assumption agreement in form and substance satisfactory to Lender in its sole discretion pursuant to which it shall assume Borrower’s obligations under the Note and the Defeasance Security Agreement and accept an assignment of the Defeasance Collateral. In connection with such assignment and assumption, Borrower and/or Successor Borrower shall deliver to Lender an opinion of counsel in form and substance and delivered by counsel satisfactory to the Trustee an Officers’ Certificate Lender in its sole discretion stating, among other things, that such assumption agreement is enforceable against Borrower and an Opinion of CounselSuccessor Borrower, as applicable, in each case stating accordance with its terms and that the Note, the Defeasance Security Agreement and any other documents executed in connection with such defeasance are enforceable against Borrower or Successor Borrower, as applicable, in accordance with their respective terms.
(f) Borrower shall pay, simultaneously with the Defeasance of the Loan as aforesaid, all reasonable costs and expenses incurred by Lender and Successor Borrower and their respective agents and servicers in satisfying the foregoing conditions precedent provided for herein relating to and of the defeasance transactions contemplated by this Section 9.02 2.5, including, without limitation, the reasonable and customary brokerage or other transaction fees in purchasing the Defeasance Collateral, any reasonable legal fees and expenses incurred in connection with obtaining and reviewing the Defeasance Collateral and the preparation of the Securities of such series have been complied with. The obligations Defeasance Security Agreement and related documentation and confirming the satisfaction of the Company other conditions to the Defeasance, and the cost of any Rating Confirmation.
(g) Upon compliance with all of the foregoing requirements of this Section 2.5, (i) Borrower and Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 shall be relieved of their respective obligations under the Note and 9.05, as applicable, with respect the Defeasance Security Agreement and the other Loan Documents (except to the Securities of extent such series and the Guarantee thereof shall obligations survive until such Securities are no longer outstanding. Thereafter, only the obligations any repayment or defeasance of the Company Loan), and (ii) the Guarantor Property shall be released from the lien of the Mortgage and of the other Loan Documents, and (iii) the Defeasance Collateral shall constitute the only collateral which shall secure the Note. Lender will, at Borrower’s expense, execute and deliver any agreements reasonably requested by Borrower to release the Property from such liens.
(h) The entity initially named herein as “Lender” shall have the sole right to (i) establish or designate the Successor Borrower and (ii) purchase or cause the purchase of the Defeasance Collateral with the Defeasance Deposit, which rights (collectively, the “Defeasance Rights”) may be exercised in Sections 8.07 Lender’s sole discretion and 9.05, shall be retained by such entity initially named herein as applicable, shall survive“Lender” notwithstanding any transfer or securitization of the Loan unless such Defeasance Rights are expressly conveyed together therewith; the Defeasance Rights may be conveyed separately from the Loan.
Appears in 1 contract
Defeasance. Except as provided below(a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the Defeasance Lockout Release Date and prior to the Open Period Start Date to voluntarily defease the entire Loan and obtain a release of the lien of the Security Instrument by providing Lender with the Total Defeasance Collateral (hereinafter, a “Total Defeasance Event”), subject to the satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than sixty (60) days’ notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days’ notice specifying a date (the “Total Defeasance Date”) on which the Total Defeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date; (B) all other sums, if any, then due and payable under the Note, this Agreement, the Company will be deemed to have paid Security Instrument and the Company other Loan Documents through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (C) all escrow, closing, recording, legal, appraisal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Total Defeasance Collateral and the Guarantor will be discharged from preparation of the Security Agreement and related documentation; and (D) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note and/or the Total Defeasance Event;
(iii) Borrower shall deposit the Total Defeasance Collateral into the Defeasance Collateral Account and all obligations otherwise comply with the provisions of Section 2.8(d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Securities of any series Defeasance Collateral Account and the Guarantee thereofTotal Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (A) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the provisions Total Defeasance Collateral; and (B) if a Securitization has occurred (1) the REMIC Trust formed pursuant to such Securitization and/or any subsequent or prior Securitization of the Loan or any portion thereof or interest therein will each not fail to maintain their respective status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code as a result of a Total Defeasance Event pursuant to this Indenture will no longer Section 2.8 and (2) the Total Defeasance Event would neither (I) constitute a “significant modification” of the Loan within the meaning of Treasury Regulation Section 1.860G-2(b) nor (II) cause the Loan to fail to be in effect with respect a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the IRS Code;
(vi) Borrower shall deliver to Lender a Rating Agency Confirmation as to the Securities of such series and the Guarantee thereof Total Defeasance Event;
(and the Trustee, at the expense of the Company and the Guarantor, vii) Borrower shall execute proper instruments acknowledging the same); provided deliver an Officer’s Certificate certifying that the following conditions shall requirements set forth in this Section 2.8 have been satisfied:;
(aviii) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm acceptable to Lender certifying that the Company Total Defeasance Collateral will generate monthly amounts equal to or greater than the Guarantor has irrevocably deposited Scheduled Defeasance Payments;
(ix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(x) Borrower shall pay all costs and expenses of Lender incurred in trust connection with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such seriesTotal Defeasance Event, for payment of the Principal of including, without limitation, Lender’s reasonable attorneys’ fees and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment expenses and after payment of all federal, state Rating Agency fees and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;expenses.
(b) If Borrower has elected to defease the entire Note and the requirements of this Section 2.8 have been satisfied, the Property shall be released from the lien of the Security Instrument and the Total Defeasance Collateral pledged pursuant to the Security Agreement shall be the sole source of collateral securing the Note. In connection with the release of the lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such deposit will not result shorter time as is acceptable to Lender in its sole discretion), a release of lien (and related Loan Documents) for execution by Lender. Such release shall be in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to form appropriate in the jurisdiction in which the Company or Property is located and shall contain standard provisions protecting the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders rights of the Securities releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Applicable Law, and (ii) will affect such release in accordance with the terms of such series will not recognize incomethis Agreement. Borrower shall pay all costs, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 taxes and will be subject to federal income tax on expenses associated with the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 release of the Securities of such series have been complied with. The obligations lien of the Company and the Guarantor in Sections 2.02 through 2.12Security Instrument, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveincluding Lender’s reasonable attorneys’ fees.
Appears in 1 contract
Defeasance. Except as provided below(a) If the Corporation shall pay or cause to be paid to the Holders of Bonds of a Series the principal or Redemption Price of and interest thereon, at the times and in the manner stipulated therein, herein, and in the applicable Supplemental Indenture, then the pledge of the Trust Estate and all other rights granted hereby to such Bonds shall be discharged and satisfied. In such event, the Company will Trustee shall, upon the request of the Corporation, execute and deliver such documents to evidence such discharge and satisfaction as may be reasonably required by the Corporation, and all moneys or investments thereof held by it pursuant hereto and to the applicable Supplemental Indenture which are not required for the payment or redemption of Bonds of such Series shall be paid or delivered by the Trustee as follows: First, to the Arbitrage Rebate Fund, the amount required to be deposited therein in accordance with the direction of an Authorized Officer of the Corporation; second, to each Provider the Provider Payments which have not been repaid, pro rata, based upon the respective Provider Payments then unpaid to each Provider; third, to the Corporation the amount certified by an Authorized Officer of the Corporation to be then due or past due pursuant to the Agreement for fees and expenses of the Corporation or pursuant to any indemnity; and, then, the balance thereof to the City. Such moneys or investments thereof so paid or delivered shall be released from any trust, pledge, lien, encumbrance or security interest created hereby.
(b) Bonds for the payment or redemption of which moneys shall have been set aside and shall be held in trust by the Trustee (through deposit of moneys for such payment or redemption or otherwise) at the maturity or redemption date thereof shall be deemed to have been paid within the meaning and with the Company and the Guarantor will be discharged from any and all obligations effect expressed in respect paragraph (a) of the Securities this Section. All Outstanding Bonds of any series Series or any maturity within a Series or a portion of a maturity within a Series shall prior to the maturity or redemption date thereof be deemed to have been paid within the meaning and with the Guarantee thereof, and the provisions effect expressed in paragraph (a) of this Indenture will no longer Section if (i) in case any of said Bonds are to be in effect with respect redeemed on any date prior to their maturity, the Securities of such series and the Guarantee thereof (and Corporation shall have given to the Trustee, at the expense in form satisfactory to it, irrevocable instructions to give as provided in Article IV hereof notice of the Company and the Guarantorredemption on said date of such Bonds, shall execute proper instruments acknowledging the same); provided that the following conditions (ii) there shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for either moneys in an amount which shall be sufficient, or Defeasance Securities the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on which when due will provide moneys which, together with the Securities of such seriesmoneys, money or U.S. Government Obligations or a combination thereof if any, deposited with the Trustee at the same time, shall be sufficient (unless such funds consist solely of money, in the opinion judgment of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to pay when due the principal, Sinking Fund Installments, if any, or Redemption Price, if applicable, and interest due and to become due on said Bonds on and prior to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes redemption date or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantordate thereof, as the case may be, is (iii) in the event said Bonds are not by their terms subject to redemption within the next succeeding sixty (60) days, the Corporation shall have given the Trustee, in form satisfactory to it, irrevocable instructions to give, as soon as practicable, by first class mail, postage prepaid, to the Holders of said Bonds at their last known addresses appearing on the registration books, a party notice to the Holders of such Bonds that the deposit required by (ii) above has been made with the Trustee and that said Bonds are deemed to have been paid in accordance with this Section and stating such maturity or redemption date upon which moneys are to be available for the payment of the principal, Sinking Fund Installments, if any, or Redemption Price, if applicable, of and interest on said Bonds and (iv) in the event said Bonds do not then bear interest at a stated rate per annum to their respective maturity dates or are subject to mandatory or optional tender, the Corporation shall have delivered Rating Confirmations to the Trustee. The Corporation shall give written notice to the Trustee of its selection of the Series and maturity payment of which shall be made in accordance with this Section. The Trustee shall select the Bonds of like Series and maturity payment of which shall be made in accordance with this Section in the manner provided in Section 4.04 hereof. Neither the Defeasance Securities nor moneys deposited with the Trustee pursuant to this Section nor principal or interest payments on any such Defeasance Securities shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal, Sinking Fund Installments, if any, or Redemption Price, if applicable, of and interest on said Bonds; provided, however, that any moneys received from such principal or interest payments on such Defeasance Securities deposited with the Trustee, if not then needed for such purpose, shall, to the extent practicable, be reinvested in Defeasance Securities maturing at times and in amounts sufficient to pay when due the principal, Sinking Fund Installments, if any, or Redemption Price, if applicable, of and interest to become due on said Bonds on and prior to such redemption date or maturity date hereof, as the case may be. Any income or interest earned by, or increment to, the investment of any such moneys so deposited, shall, to the extent certified by the Trustee to be in excess of the amounts required hereinabove to pay the principal, Sinking Fund Installments, if any, or Redemption Price, if applicable, of and interest on such Bonds, as realized, be paid by the Trustee as follows: First, to the Arbitrage Rebate Fund, the amount required to be deposited therein in accordance with the direction of an Authorized Officer of the Corporation; second, to each Provider the Provider Payments which it is bound;have not been repaid, pro rata, based upon the respective Provider Payments then unpaid to each Provider; third, to the Corporation the amount certified by an Authorized Officer of the Corporation to be then due or past due pursuant to the Agreement for fees and expenses of the Corporation or pursuant to any indemnity; and, then, the balance thereof to the City. The moneys so paid by the Trustee shall be released of any trust, pledge, lien, encumbrance or security interest created hereby.
(c) no Default with respect For purposes of determining whether Variable Interest Rate Bonds shall be deemed to have been paid prior to the maturity or redemption date thereof, as the case may be, by the deposit of moneys, or Defeasance Securities and moneys, if any, in accordance with clause (ii) of the second sentence of paragraph (b) of this Section 12.01, the interest to come due on such series shall have occurred and be continuing Variable Interest Rate Bonds on the date of such deposit;
(d) the Company shall have delivered or prior to the Trustee either (x) a ruling directed to maturity date or redemption date thereof, as the Trustee received from case may be, shall be calculated at the Internal Revenue Service to Maximum Interest Rate permitted by the effect terms thereof; provided, however, that the Holders of the Securities of such series will not recognize incomeif on any date, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 Variable Interest Rate Bonds having borne interest at less than such Maximum Interest Rate for any period, the total amount of moneys and will be subject to federal income tax Defeasance Securities on deposit with the same Trustee for the payment of interest on such Variable Interest Rate Bonds is in excess of the total amount and in the same manner and at the same times as which would have been required to be deposited with the case if Trustee on such deposit and defeasance had not occurred or date in respect of such Variable Interest Rate Bonds in order to satisfy clause (yii) an Opinion of Counsel the second sentence of paragraph (b) of this Section 12.01, the Trustee shall pay the amount of such excess as follows: First, to the same effect as Arbitrage Rebate Fund, the ruling described amount required to be deposited therein in accordance with the direction of an Authorized Officer of the Corporation; second, to each Provider the Provider Payments which have not been repaid, pro rata, based upon the respective Provider Payments then unpaid to each Provider; third, to the Corporation the amount certified by an Authorized Officer of the Corporation to be then due or past due pursuant to the Agreement for fees and expenses of the Corporation or pursuant to any indemnity; and, then, the balance thereof to the City. The moneys so paid by the Trustee shall be released of any trust, pledge, lien, encumbrance or security interest created hereby.
(d) Option Bonds shall be deemed to have been paid in accordance with clause (xii) above; and
of the second sentence of paragraph (eb) of this Section 12.01 only if, in addition to satisfying the Company has delivered requirements of clauses (i) and (iii) of such sentence, there shall have been deposited with the Trustee moneys in an amount which shall be sufficient to pay when due the maximum amount of principal of and premium, if any, and interest on such Bonds which could become payable to the Trustee an Officers’ Certificate and an Opinion Holders of Counsel, in each case stating that all conditions precedent such Bonds upon the exercise of any options provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities Holders of such series have been complied with. The obligations of Bonds; provided, however, that if, at the Company and time a deposit is made with the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect Trustee pursuant to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.paragraph
Appears in 1 contract
Sources: Trust Indenture
Defeasance. Except (a) When the principal or redemption price (as provided belowthe case may be) of, and interest on, all Notes issued hereunder have been paid, or provision has been made for payment of the same, together with the compensation of the Trustee and all other sums payable hereunder by the Issuer, the Company will right, title and interest of the Trustee shall thereupon cease and the Trustee, on demand of the Issuer, shall release this Indenture and shall execute such documents to evidence such release as may be reasonably required by the Issuer and shall turn over to the Issuer or to such person, body or authority as may be entitled to receive the same all balances then held by it hereunder. If payment or provision therefor is made with respect to less than all of the Notes, the particular Notes (or portion thereof) for which provision for payment shall have been considered made shall be selected by lot by the Trustee, and thereupon the Trustee shall take similar action for the release of this Indenture with respect to such Notes.
(b) Provision for the payment of Notes shall be deemed to have paid been made when the Trustee holds in the Note Fund, in trust and irrevocably set aside exclusively for such payment, (i) moneys sufficient to make such payment and any payment of the Company purchase price of Notes pursuant to Section 3.01; provided, that any such moneys necessary for the payment of Notes not yet due shall constitute Available Moneys and/or (ii) Governmental Obligations maturing as to principal and interest in such amounts and at such times as will provide sufficient moneys (without consideration of any reinvestment thereof) to make such payment and any payment of the Guarantor will be discharged from any purchase price of Notes pursuant to Section 3.01, and all obligations which are not subject to prepayment, redemption or call prior to their stated maturity; provided, that such Governmental Obligations shall have been on deposit with the Trustee in a separate and segregated account for a period of 95 days during which no Event of Bankruptcy has occurred, or shall have been purchased with Available Moneys. No Notes in respect of which a deposit under clause (i) or (ii) above has been made shall be deemed paid within the Securities meaning of this Article unless the Trustee is satisfied that the amounts deposited are sufficient to make all payments that might become due on the Notes; provided that notwithstanding any other provision of this Indenture, any Notes purchased with such moneys pursuant to Section 3.01 shall be surrendered to the Trustee for cancellation and shall not be remarketed. Notwithstanding the foregoing, no delivery to the Trustee under this subsection (b) shall be deemed a payment of any series and the Guarantee thereof, and Notes which are to be redeemed prior to their stated maturity until such Notes shall have been irrevocably called or designated for redemption on a date thereafter on which such Notes may be redeemed in accordance with the provisions of this Indenture will no longer be in effect with respect to the Securities and proper notice of such series and redemption shall have been given in accordance with Article VIII or the Guarantee thereof (and Issuer shall have given the Trustee, in form satisfactory to the Trustee, irrevocable instructions to give, in the manner and at the expense times prescribed by Article VIII, notice of redemption. Neither the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably obligations nor moneys deposited in trust with the Trustee as pursuant to this Section shall be withdrawn or used for any purpose other than, and shall be segregated and held in trust funds solely for for, the benefit of the Holders of the Securities of such series, for payment of the Principal principal of, purchase price of, redemption price of and interest on the Securities of Notes with respect to which such series, money deposit has been made. In the event that such moneys or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered obligations are to be applied to the Trustee) without consideration payment of principal or redemption price of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect Notes more than 60 days following the deposit thereof payable by with the Trustee, the Trustee shall publish once in an Authorized Newspaper a notice stating that such moneys or obligations have been deposited and identifying the Notes for the payment of which such moneys or obligations are being held and shall mail copies of all such notices to pay all owners of Notes for the payment of which such moneys or obligations are being held at their registered addresses and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)Rating Service, as if the case may be;
(b) such deposit will not result in Notes are then rated by a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;Rating Service.
(c) no Default with respect Anything in Article XIV to the Securities contrary notwithstanding, if moneys or Governmental Obligations have been deposited or set aside with the Trustee pursuant to this Article for the payment of the principal, purchase price or redemption price of the Notes and the interest thereon and the principal or redemption price of such series Notes and the interest thereon shall not have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered in fact been actually paid in full, no amendment to the Trustee either (x) a ruling directed to provisions of this Article shall be made without the Trustee received from the Internal Revenue Service to the effect that the Holders consent of the Securities owner of such series will not recognize incomeeach of the Notes affected thereby. Notwithstanding the foregoing, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein those provisions relating to the defeasance contemplated by this Section 9.02 purchase of Notes, the maturity of Notes, interest payments and dates thereof, and the Trustee's remedies with respect thereto, and provisions relating to exchange, transfer and registration of Notes, replacement of mutilated, destroyed, lost or stolen Notes, the safekeeping and cancellation of Notes, non-presentment of Notes, the holding of moneys in trust, and repayments to the Issuer from the Note Fund and the duties of the Securities of such series have been complied with. The obligations Trustee in connection with all of the Company foregoing and the Guarantor fees, expenses and indemnities of the Trustee, shall remain in Sections 2.02 through 2.12effect and shall be binding upon the Trustee, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series Issuer and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only Noteholders notwithstanding the obligations release and discharge of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.lien of this Indenture. [Balance of Page Intentionally Left Blank]
Appears in 1 contract
Sources: Trust Indenture (Aerovox Inc)
Defeasance. Except as provided belowWhen there are in the Bond Fund and/or the Credit Facility Fund sufficient funds, the Company will be deemed to have paid or non-callable and the Company non-prepayable Government Obligations in such principal amounts, bearing interest at such rates and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereofwith such maturities (including, and the provisions of this Indenture will no longer be in effect with respect to any Bonds in the Securities Weekly Mode, maturities no greater than seven (7) days to fund the payment of the Purchase Price) as will provide, without reinvestment, sufficient funds to pay the Purchase Price or principal of, premium, if any, and interest on the Bonds in full as and when such series amounts become due, and when all the rights hereunder of the Issuer (including the right to receive payments under Paragraphs 308(b)(i) and (ii)), the Bank and of the Trustee have been provided for (1) the Bondowners will cease to be entitled to any right, benefit or security under this Agreement except the right to receive payment of the funds deposited and held for payment and other rights set forth below or which rights by their nature cannot be satisfied prior to or simultaneously with termination of the lien hereof, (2) the security interests created by this Agreement (except in such funds and investments) shall terminate, except to the extent that Borrower has reimbursement obligations to Bank under the Credit Facility and (3) the Issuer and the Guarantee thereof Trustee shall execute and deliver such instruments as may be necessary to discharge the lien and security interests created hereunder; provided, however, that (a) with respect to any Bonds that are supported by a Credit Facility, all such funds and obligations in the Bond Fund and/or Credit Facility Fund shall be Eligible Funds; (b) if any such Bonds are to be redeemed prior to the maturity thereof, such Bonds shall have been duly called for redemption or irrevocable written instructions for such a call shall have been given to the Trustee; and (c) if the Bonds bear interest at the Weekly Rate, the Trustee shall have received written confirmation from S&P, if S&P is then rating the Bonds, that the proposed defeasance will not in and of itself cause a reduction or withdrawal of the rating then in effect on the Bonds. Upon such defeasance, the funds and investments required to pay or redeem the Bonds in full shall be irrevocably set aside for that purpose. The Trustee shall cause to be mailed to all Bondowners in the manner herein specified for redemption of Bonds within fifteen (15) days of the conditions of this section being met a notice stating that such conditions have been met and that the lien of this Agreement has been discharged, and, if the Bonds are to be redeemed prior to maturity, specifying the date of redemption and the redemption price. Any funds or property held by the Trustee for payment of the Bonds under this section and not required for such payment shall (unless there is an Event of Default hereunder, in which case they shall be applied as provided in Section 604), after satisfaction of all the rights of the Issuer and the Trustee, at the expense and payment of the Company rebate, if any, due to the United States under IRC Section 148(f), and upon such indemnification, if any, as the Issuer or the Trustee may reasonably require, be distributed to the Borrower subject to Bank's security interest. If Bonds are not presented for final payment when due and moneys are available in the hands of the Trustee therefor, the Trustee shall, without liability for interest thereon, continue to hold the moneys held for that purpose subject to Subsection 304(c), and interest shall cease to accrue on the principal amount represented thereby. When there are in the Bond Fund and/or Credit Facility Fund funds or securities as described in the preceding paragraph as are sufficient to pay the Purchase Price, principal of, premium, if any, and interest on, some but not all of the Bonds in full as and when such amounts become due and the Guarantorother conditions in the preceding paragraph have been met with respect to such Bonds, shall execute proper instruments acknowledging the same); provided that the following conditions particular Bonds (or portions thereof) for which such provision for payment shall have been satisfied:
considered made shall be selected by lot by the Trustee (aor, if the Bonds are in the Book-Entry Only System, in such manner as DTC shall determine) and thereupon the Company Trustee and the Issuer shall take similar action to release the security interests created by this Agreement in respect of such Bonds (except in such funds or securities and investments thereof), subject however to compliance with the Guarantor has irrevocably deposited applicable conditions set forth above. Notwithstanding the foregoing, those provisions relating to the maturity of Bonds, interest payments and dates thereof, the tender of Bonds for purchase and the Trustee's remedies with respect thereto, and provisions relating to exchange, transfer and registration of Bonds, replacement and cancellation of Bonds, the holding of moneys in trust with and the duties of the Trustee as trust funds solely for the benefit in connection with all of the Holders foregoing and the fees, expenses and indemnities of the Securities of such series, for payment Trustee and the Issuer and any obligation of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Borrower to make rebate payments to the Trustee) without consideration of any reinvestment United States, shall remain in full force and after payment of all federal, state effect and local taxes or other charges and assessments in respect thereof payable by shall be binding upon the Trustee, to pay the Issuer, the Borrower and the Bondowners notwithstanding the release and discharge of this Agreement until the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would Bonds have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described actually paid in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivefull.
Appears in 1 contract
Sources: Loan and Trust Agreement (Datum Inc)
Defeasance. Except The indenture will permit us to terminate all our respective obligations under the indenture as provided belowthey relate to any particular series of debt securities, other than the Company will be deemed obligation to have paid pay interest, if any, on and the Company and the Guarantor will be discharged from any and all obligations in respect principal of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities debt securities of such series and the Guarantee thereof (and the Trusteecertain other obligations, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited any time by: • depositing in trust with the Trustee as trustee, under an irrevocable trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such seriesagreement, money or U.S. Government Obligations or a combination thereof government obligations in an amount sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal principal of and accrued interest interest, if any, on the outstanding Securities debt securities of such series to their maturity or earlier redemption (irrevocably provided for under arrangements satisfactory redemption; and • complying with other conditions, including delivery to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities trustee of such series shall have occurred and be continuing on the date an opinion of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service counsel to the effect that the Holders of the Securities of such series holders will not recognize income, gain or loss for federal income tax purposes as a result of our exercise of such discharge under this Section 9.02 right and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case otherwise. The indenture will also permit us to terminate all of our respective obligations under the indenture as they relate to any particular series of debt securities, including the obligations to pay interest, if such deposit any, on and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 principal of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities debt securities of such series and certain other obligations, at any time by: • depositing in trust with the Guarantee thereof trustee, under an irrevocable trust agreement, money or government obligations in an amount sufficient to pay principal and interest, if any, on the debt securities of such series to their maturity or redemption; and • complying with other conditions, including delivery to the trustee of an opinion of counsel to the effect that (A) we have received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date such series of debt securities were originally issued, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall survive until state that, holders will not recognize income, gain or loss for federal income tax purposes as a result of our exercise of such Securities right and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case otherwise. In addition, the indenture will permit us to terminate substantially all our respective obligations under the indenture as they relate to a particular series of debt securities by depositing with the trustee money or government obligations sufficient to pay all principal and interest on such series at its maturity or redemption date if the debt securities of such series will become due and payable at maturity within one year or are no longer outstanding. Thereafter, only the obligations to be called for redemption within one year of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivedeposit.
Appears in 1 contract
Sources: At Market Issuance Sales Agreement
Defeasance. Except When there are in the Debt Service Fund and Redemption Fund sufficient funds, or Government or Equivalent Obligations described in clause (i) of the definition thereof in such principal amounts, bearing interest at such rates and with such maturities as provided belowwill provide sufficient funds to pay or redeem the Bonds in full, and when all the Company will be deemed to have paid rights hereunder of the Issuer and the Company and Trustee have been provided for, including the Guarantor will be discharged from any and all obligations payment in respect full of the Securities of any series and Issuer’s Service Charge, upon written notice from the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect Borrower to the Securities of such series and the Guarantee thereof (Issuer and the Trustee, at the expense Bondowners shall cease to be entitled to any benefit or security under this Agreement except the right to receive payment of the Company funds deposited and held for payment and other rights which by their nature cannot be satisfied prior to or simultaneously with termination of the lien hereof (including obligations of the Borrower under Sections 306 and 1002), the security interests created by this Agreement (except in such funds and investments) shall terminate, and the Guarantor, Issuer and the Trustee shall execute proper and deliver such instruments acknowledging as may be necessary to discharge the same)lien and security interests created hereunder; provided provided, however, that if any such Bonds are to be redeemed prior to the following conditions maturity thereof, the Issuer shall have taken all action necessary to redeem such Bonds and notice of such redemption shall have been satisfied:
(a) duly mailed in accordance with this Agreement or irrevocable written instructions so to mail shall have been given to the Company Trustee. Upon such defeasance, the funds and investments required to pay or redeem the Guarantor has Bonds in full shall be irrevocably deposited set aside for that purpose, subject, however, to Section 313 hereof, and moneys held for defeasance shall be invested only as provided above in trust with this section. Any funds or property held by the Trustee as trust funds solely and not required for the benefit payment or redemption of the Holders Bonds in full shall, after satisfaction of all the rights of the Securities of such series, Issuer and the Trustee and after allowance for payment of the Principal of and interest on the Securities of such seriesrebate, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyif any, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered due to the Trustee) without consideration United States of any reinvestment and after payment of all federalAmerica under IRC §148(f), state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory be distributed to the Trustee)Borrower upon such indemnification, if any, as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company Issuer or the Guarantor, as the case Trustee may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivereasonably require.
Appears in 1 contract
Sources: Loan and Trust Agreement (Central Vermont Public Service Corp)
Defeasance. Except as provided below(A) If the Agency shall pay or cause to be paid to the holders of the Bonds, the Company will principal and interest and Redemption Price, if any, to become due thereon, at the times and in the manner stipulated therein and in this Indenture, then the pledge of any revenues and assets hereby pledged and all other rights granted hereby shall be discharged and satisfied. In such event, the Trustee shall, upon the request of the Agency, execute and deliver to the Agency all such instruments as may be desirable to evidence such discharge and satisfaction and the Trustee shall pay over to deliver to the Agency all moneys or securities held by it pursuant to this Indenture which are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption.
(B) Bonds or interest installments for the payment or redemption of which moneys shall have been set aside and shall be held in trust by the Trustee (through deposit by the Agency of funds for such payment or redemption or otherwise), whether at or prior to the maturity or Redemption Date thereof, shall be deemed to have been paid within the meaning and with the Company and the Guarantor will be discharged from any effect expressed in subsection (A) of this Section. All Outstanding Bonds and all obligations in respect of interest installments appertaining to such Bonds shall, prior to the Securities of any series and the Guarantee maturity or Redemption Date thereof, be deemed to have been paid within the meaning and with the provisions effect expressed in subsection (A) of this Indenture will no longer Section if (i) in case any of said Bonds are to be in effect with respect redeemed on any date prior to their maturity, the Agency shall have given to the Securities Trustee in form satisfactory to it irrevocable instructions to publish as provided in Article VI notice of redemption on said date of such series and the Guarantee thereof Bonds, (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions ii) there shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for either moneys in an amount which shall be sufficient, or Investment Securities the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and the interest on which when due will provide moneys which, together with the Securities of such seriesmoneys, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyif any, in deposited with the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to Trustee at the Trustee) without consideration of any reinvestment and after payment of all federalsame time, state and local taxes or other charges and assessments in respect thereof payable by the Trusteeshall be sufficient, to pay when due the principal or Redemption Price, if any, and discharge the Principal of interest due and accrued interest to become due on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory said Bonds on and prior to the Trustee), as the case may be;
(b) such deposit will not result in a breach Redemption Date or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantormaturity date thereof, as the case may be, is and (iii) in the event said Bonds are not by their terms subject to redemption within the next succeeding sixty days, the Agency shall have given the Trustee in form satisfactory to it irrevocable instruction to publish, as soon as practicable, at least twice, at an interval of not less than seven days between publications, in Authorized Newspapers a party notice to the holders of such Bonds that the deposit required by (ii) above has been made with the Trustee and that said Bonds are deemed to have been paid in accordance with this Section and stating such maturity or Redemption Date upon which moneys are to be available for the payment of the principal or Redemption Price, if any, on said Bonds. Neither Investment Securities or moneys deposited with the Trustee pursuant to this Section nor principal or interest payments on any such Investment Securities shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal or Redemption Price, if any, and interest on said Bonds; but any case received from such principal or interest payments on such Investment Securities deposited with the Trustee, if not then needed for such purpose, shall, to the extent practicable, be reinvested in Investment Securities maturing at times and in amounts sufficient to pay when due the principal or Redemption Price, if any and interest to become due on said Bonds on or prior to such Redemption Date or maturity date thereof, as the case may be, and interest earned from such reinvestments shall be paid over to the Agency as received by the Trustee, free and clear of any trust, lien or pledge. For the purposes of this Section, Investment Securities shall mean and include only such obligations as are described in clauses (1), (2), (6) and (8) of the definition of Investment Securities herein, but time and demand deposits shall be secured as to both principal and interest by obligations described only in clause (1) or (6) or said definition.
(C) If, through the deposit of moneys by the Agency or otherwise, the Trustee shall hold, pursuant to this Indenture, moneys sufficient to pay the principal and interest to maturity on all Outstanding Bonds, or in the case of Bonds in respect of which the Agency shall have taken all action necessary to redeem prior to maturity, sufficient to pay the Redemption Price and interest to such Redemption Date, then at the request of the Agency all moneys held by any Paying Agent shall be applied over to the Trustee and together with other moneys held by it hereunder, shall be held by the Trustee for the payment or the redemption of Outstanding Bonds and interest.
(D) Anything in this Indenture to the contrary notwithstanding, any moneys held by the Trustee in trust for the payment and discharge of any of the Bonds which remain unclaimed for six years after the date when all of the Bonds have become due and payable, either at their stated maturity dates or by which it is bound;
(c) no Default with respect to call for earlier redemption, if such moneys were held by the Securities of Trustee at such series shall have occurred and be continuing on date, or for six years after the date of deposit of such deposit;
(d) moneys if deposited with the Company shall have delivered Trustee after the said date when all of the Bonds became due and payable, shall, at the written request of the Agency, be repaid by the Trustee to the Agency, as its absolute property and free from trust, and the Trustee either (x) a ruling directed shall thereupon be released and discharged; except that before being required to make any such payment to the Agency the Trustee received from shall, at the Internal Revenue Service expense of the Agency, cause to be published at least twice, at an interval of not less than seven days between publications, in the Authorized Newspapers notice that said moneys remain unclaimed and that, after a date named in said notice, which date shall be not less than ten nor more than twenty days after the date of the first publication of such notice, the balance of such moneys then unclaimed will be returned to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveAgency.
Appears in 1 contract
Sources: Indenture of Trust
Defeasance. Except as provided below, On the Company will be deemed to have paid and date during the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided Amortization Period that the following conditions shall have been satisfied:
: (ai) an amount shall have been deposited (x) in the Company or Defeasance Funding Account equal to the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit sum of the Holders Class A Outstanding Principal Amount, the Class B Outstanding Principal Amount and the CTO Outstanding Principal Amount, which amount shall be invested in Cash Equivalents and (y) in the Defeasance Reserve Account equal to or greater than the excess of the Securities sum of such seriesthe Class A Monthly Interest, the Class B Monthly Interest and the estimated CTO Monthly Interest over the estimated amount of investment earnings on amounts in the Defeasance Funding Account, as estimated by the Transferor, for payment each of the Principal of and interest on Interest Accrual Periods during the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
the deposit to the Defeasance Funding Account through the CTO Expected Final Payment Date (dthe "Required Defeasance Reserve Account Amount"); (ii) the Company Transferor shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect that such deposit and termination of obligations will not result in the Trust being required to register as an "investment company" within the ruling described in clause meaning of the Investment Company Act and an Opinion of Counsel to the effect that following such deposit none of the Trust, the Defeasance Reserve Account or the Defeasance Funding Account will be deemed to be an association (xor publicly traded partnership) abovetaxable as a corporation; and
(eiii) the Company has Transferor shall have delivered to the Trustee a certificate of an Officers’ Certificate and an Opinion officer of Counsel, in each case the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit and termination of its obligations will not constitute a Pay Out Event or any event that, with the giving of notice or the lapse of time, would cause a Pay Out Event to occur; and (iv) the Rating Agency Condition shall have been satisfied; then, the Series 1998-1 Securities will no longer be entitled to the defeasance contemplated by this Section 9.02 security interest of the Securities Trust in the Receivables and, except those set forth in clause (i) above, other Trust assets ("Defeasance"), the percentages applicable to the allocation to the Series 1998-1 Securityholders of Principal Collections, Finance Charge Collections, unpaid Adjustment Payments and Default Amounts shall be reduced to zero and the Monthly Servicing Fee shall be reduced to zero; provided, however, that no such series have been complied withDefeasance shall occur for so long as any Class A Charge-Offs, Class B Charge-Offs or CTO Charge-Offs exist. The obligations Upon the satisfaction of the Company and foregoing conditions, the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect Class D Invested Amount shall be reduced to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivezero.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Federated Department Stores Inc /De/)
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and the Company and the Guarantor will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Security and Covenant Defeasance”):
(a) the Company or Issuer shall have irrevocably pledged to the Guarantor has irrevocably deposited in trust with the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government bonds accepted by the Securities of Bond Trustee (the “Defeasance Pledge”) in such series, amounts as will be sufficient for the payment of the Principal principal (including if applicable premium payable upon exercise of a Call Option) and interest on the Securities of such series, money Outstanding Bonds to Final Maturity Date (or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion redemption upon an exercise of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to notified Call Option) or any other amount agreed between the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beParties;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such depositestablishment of the Defeasance Pledge, or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time during any hardening period applicable to the Defeasance Pledge (or the relevant period for non-Norwegian companies) or any other date agreed between the Parties;
(c) if the Bonds are secured, the Defeasance Pledge shall be considered as a replacement of the security established prior to the Defeasance Pledge;
(d) the Company Issuer shall have delivered to the Bond Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect certificate signed by its Chief Executive Officer that the Holders Defeasance Pledge was not made by the Issuer with the intent of preferring the Bondholders over any other creditors of the Securities Issuer or with the intent of such series will not recognize incomedefeating, gain hindering, delaying or loss for federal income tax purposes as a result defrauding any other creditors of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred Issuer or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveothers; and
(e) the Company has Issuer shall have delivered to the Bond Trustee an Officers’ Certificate any certificate or legal opinion reasonably required by the Bond Trustee regarding the Security and an Opinion of CounselCovenant Defeasance or Defeasance Pledge, in each case stating that all conditions precedent provided for herein relating to including any certificate or legal opinion on (i) the defeasance contemplated by this Section 9.02 compliance of the Securities of such series have been complied with. The obligations conditions of the Company Security and Covenant Defeasance, (ii) that the Defeasance Pledge constitutes a valid, perfected and enforceable security in favour of the Bond Trustee for the benefit of the Bondholders which will not be subject to any rights of creditors of the Issuer or any bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally under the laws of the jurisdiction where the Defeasance Pledge was established and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations corporate domicile of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.Issuer,
Appears in 1 contract
Sources: Bond Agreement
Defeasance. Except The indenture will permit us to terminate all our respective obligations under the indenture as provided belowthey relate to any particular series of debt securities, other than the Company will be deemed obligation to have paid pay interest, if any, on and the Company and the Guarantor will be discharged from any and all obligations in respect principal of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities debt securities of such series and the Guarantee thereof (and the Trusteecertain other obligations, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited any time by: ∎ depositing in trust with the Trustee as trustee, under an irrevocable trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such seriesagreement, money or U.S. Government Obligations or a combination thereof government obligations in an amount sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal principal of and accrued interest interest, if any, on the outstanding Securities debt securities of such series to their maturity or earlier redemption (irrevocably provided for under arrangements satisfactory redemption; and ∎ complying with other conditions, including delivery to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities trustee of such series shall have occurred and be continuing on the date an opinion of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service counsel to the effect that the Holders of the Securities of such series holders will not recognize income, gain or loss for federal income tax purposes as a result of our exercise of such discharge under this Section 9.02 right and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case otherwise. The indenture will also permit us to terminate all of our respective obligations under the indenture as they relate to any particular series of debt securities, including the obligations to pay interest, if such deposit any, on and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 principal of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities debt securities of such series and certain other obligations, at any time by: ∎ depositing in trust with the Guarantee thereof trustee, under an irrevocable trust agreement, money or government obligations in an amount sufficient to pay principal and interest, if any, on the debt securities of such series to their maturity or redemption; and ∎ complying with other conditions, including delivery to the trustee of an opinion of counsel to the effect that (A) we have received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date such series of debt securities were originally issued, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall survive until state that, holders will not recognize income, gain or loss for federal income tax purposes as a result of our exercise of such Securities right and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case otherwise. In addition, the indenture will permit us to terminate substantially all our respective obligations under the indenture as they relate to a particular series of debt securities by depositing with the trustee money or government obligations sufficient to pay all principal and interest on such series at its maturity or redemption date if the debt securities of such series will become due and payable at maturity within one year or are no longer outstanding. Thereafter, only the obligations to be called for redemption within one year of the Company deposit. A holder will be able to transfer or exchange debt securities only in accordance with the indenture. The registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents, and to pay any taxes and fees required by law or permitted by the Guarantor indenture. The indenture will contain limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in Sections 8.07 specified cases or to realize on property received in respect of any such claim as security or otherwise. The indenture will permit the trustee to engage in other transactions; however, if it acquires any conflicting interest, it must eliminate such conflict or resign. The indenture will provide that in case an event of default occurs and 9.05is not cured, as applicablethe trustee will be required, in the exercise of its power, to use the degree of care of a prudent person in similar circumstances in the conduct of such person’s own affairs. The trustee shall survivebe under no obligation to exercise any of the rights or powers vested in it by the indenture at the request or direction of any of the holders pursuant to the indenture, unless such holders shall have offered to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Appears in 1 contract
Sources: Open Market Sale Agreement
Defeasance. (a) Except as expressly provided belowin paragraph (b) below with respect to certain of the Guarantors, this Agreement shall terminate at such time as the Guaranteed Obligations have been paid and performed in full and all other obligations of the Guarantors to HRP under this Agreement have been satisfied in full; provided, however, if at any time, all or any part of any payment applied on account of the Guaranteed Obligations is or must be rescinded or returned for any reason whatsoever (including, without limitation, the Company will insolvency, bankruptcy or reorganization of the Tenant), this Agreement, to the extent such payment is or must be rescinded or returned, shall be deemed to have paid and the Company and the Guarantor will be discharged from continued in existence notwithstanding any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;termination.
(b) such deposit will not result in a breach or violation ofProvided that no (i) monetary Default, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(cii) no Default with respect to the Securities which HRP shall have given Notice thereof to Tenant, or (iii) Event of such series Default shall have occurred and be continuing on under the date of such deposit;
(d) Lease, in the Company event that the IPO shall have delivered to the Trustee either be consummated and (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders common shares of the Securities of such series will Brookdale issued in connection therewith shall not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or redemption, (y) an Opinion Brookdale shall have a resulting equity market capitalization of Counsel not less than Thirty-Five Million Dollars ($35,000,0000) and (z) HRP shall receive such evidence thereof as HRP may reasonably require, HRP shall, promptly upon the written request of any Guarantor other than Brookdale and the Subtenants, release such Guarantor (other than Brookdale and the Subtenants) from all obligations and liabilities arising under this Agreement subsequent to the same release date, HRP agreeing, in connection with any such release, promptly to execute and deliver to the released Guarantors all documents reasonably necessary to effect such release. It is expressly understood and agreed that Brookdale and the Subtenants shall not be released from their liabilities and obligations under this Agreement, except as the ruling described provided in clause paragraph (xa) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.
Appears in 1 contract
Sources: Guaranty Agreement (Senior Housing Properties Trust)
Defeasance. Except as provided below, the Company The Issuer will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereofseries, and the provisions of this Indenture will will, except as provided below, no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and series, the Trustee, at the expense of the Company and the GuarantorIssuer, shall execute proper instruments acknowledging the same)same and the Securities of any such series will no longer be Outstanding pursuant to this Indenture; provided that the following conditions shall have been satisfied:
(aA) the Company or the Guarantor Issuer has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal principal of and accrued interest on the outstanding Outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(bB) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, Issuer is a party or by which it is bound;
(cC) no event which, with the giving of notice or lapse of time, would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(dD) the Company Issuer shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge the Issuer's exercise of its option under this Section 9.02 9.2 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance option had not occurred been exercised or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveabove and (2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest in the trust funds subject to no prior liens under the UCC; and
(eE) the Company Issuer has delivered to the Trustee an Officers’ ' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 9.2 of the Securities of such series have been complied with. The Issuer's obligations of the Company and the Guarantor in Sections 2.02 through 2.122.2, 4.022.5, 8.072.6, 8.082.7, 9.04 2.8, 2.9, 2.10, 3.2, 3.4, 5.6, 5.9 and 9.05, as applicable, 9.5 with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the Issuer's obligations of the Company and the Guarantor in Sections 8.07 5.6 and 9.05, as applicable, 9.5 shall survive.
Appears in 1 contract
Defeasance. Except If, when the Bonds shall become due and payable in accordance with their terms or otherwise as provided belowin this Indenture and the whole amount of the principal of, premium, if any, and interest due and payable upon all of the Bonds shall be paid, or provision shall have been made for the payment of the same, together with all other sums payable hereunder and all amounts due and owing to the Provider of any Credit Facility Obligatio n relating to the Bonds and all Financial Products Payments pursuant to Parity Financial Products Agreements relating to the Bonds shall have been paid or provided for, then all covenants, agreements and other obligations of the District to the Owners of Bonds and the providers of any such Credit Facility Obligation and Parity Financial Products Agreement shall thereupon cease, terminate and become void and be discharged and satisfied. In such event, subject to the provisions of Section 3.11 hereof, upon the request of the District, the Company will Trustee shall assign and transfer to the District all property then held by it, shall execute such documents as may be reasonably required by the District, shall turn over to the District or to such Person as may be designated by the District Representative any surplus held by it in any Fund and the Rebate Fund. Upon such defeasance, all money held by or on behalf of the District hereunder may be used for any lawful purpose. Any Bond shall, prior to the maturity or Redemption Date thereof, be deemed to have been paid within the meaning and with the Company and effect expressed in this Section if: (i) in case such Bond is to be redeemed on any date prior to its maturity, the Guarantor will District shall have given to the Trustee irrevocable instructions to give notice of redemption of such Bond on said Redemption Date, such notice to be discharged from any and all obligations given in respect of the Securities of any series and the Guarantee thereof, and accordance with the provisions of this Indenture will no longer be in effect with respect to the Securities of such series Section 2.06 hereof; and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions ii) there shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such seriesan Escrow Fund cash or Federal Securities, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of moneyboth, in an amount suffic ient (including the opinion of a nationally recognized firm of independent public accountants expressed known minimum yield from Federal Securities in a written certification thereof delivered which such amount may be wholly or partially invested) to pay when due the Debt Service Requirements due and to become due on such Bond on and prior to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes Redemption Date or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantordate thereof, as the case may be, is as evidenced by a party report of an independent firm of nationally recognized certified public accountants verifying the sufficiency of the Escrow Fund to pay the applicable Bonds in full on and prior to the Redemption Date or maturity date thereof, as the case may be. The Federal Securities shall not contain provisions permitting the redemption thereof at the option of the obligor and shall become due or be callable at the option of the holder at or prior to the respective times on which the proceeds thereof shall be needed to make such Debt Service Requirements. Neither such Federal Securities (or principal or interest payments received with respect thereto) nor moneys placed in such Escrow Fund shall be withdrawn or used for any purpose other than the payment of the Debt Service Requirements of such Bond and such Federal Securities or moneys shall be held in trust solely for the payment of such Debt Service Requirements of such Bond; provided, any cash received from the principal or interest payments on such Federal Securities if not then needed for such purpose shall, to the extent practicable, be reinvested in Federal Securities maturing at times and in amounts sufficient to pay when due the Debt Service Requirements to become due on such Bond on or prior to such Redemption Date or maturity date thereof, as the case may be. Any such Bond shall no longer be secured by which it is bound;
(c) no Default or entitled to the benefits of this Indenture, except for the purpose of any payment from such moneys or Federal Securities placed in such Escrow Fund. Upon compliance with the provisions of this Section with respect to all Bonds then Outstanding, this Indenture may be discharged in accordance with the Securities provisions of this Section, but the liability of the District in respect of such series Bonds shall have occurred and continue provided that the Owners thereof shall thereafter be continuing on the date entitled to payment only out of such deposit;
(d) Escrow Fund. In the Company event that there is a defeasance of only part of the Bonds, the Registrar shall, if requested by the District in writing, institute a system to preserve the identity of the individ ual Bonds or portions thereof so defeased, regardless of changes in Bond numbers attributable to transfers and exchanges of Bonds, and the Registrar shall have delivered be entitled to the Trustee either (x) a ruling directed to the Trustee received reasonable compensatio n and reimbursement of expenses from the Internal Revenue Service to the effect that the Holders of the Securities of District in connection with such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivesystem.
Appears in 1 contract
Sources: Indenture of Trust
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and the Company and the Guarantor will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Covenant Defeasance”);
(a) the Company or Issuer shall have irrevocably pledged to the Guarantor has irrevocably deposited in trust with the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government obligations acceptable by the Securities of Bond Trustee (the “Defeasance Pledge”) in such series, amounts as will be sufficient for the payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Outstanding Bonds to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beMaturity Date;
(b) such deposit will not result in the Issuer shall, if required by the Bond Trustee, provide a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect legal opinion reasonable acceptable to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Bond Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series Bondholders will not recognize income, gain or loss for federal income tax purposes (under US federal or Norwegian, if applicable) as a result of such discharge under this Section 9.02 the Defeasance Pledge and Covenant Defeasance, and will be subject to federal such income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance the Defeasance Pledge had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; andoccurred;
(ec) no Event of Default shall have occurred and be continuing on the Company has delivered to the Trustee an Officers’ Certificate and an Opinion date of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 establishment of the Securities Defeasance Pledge, or insofar as Events of such series have been complied with. The obligations Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 181st day after the date of establishment of the Company and Defeasance Pledge;
(d) neither the Guarantor Defeasance Pledge nor the Covenant Defeasance results in Sections 2.02 through 2.12a breach or violation of any material agreement or instrument binding upon the Issuer, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to or the Securities certificate of such series and association or partnership agreement governing the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.Issuer;
Appears in 1 contract
Defeasance. Except as provided below(a) At any time prior to the ARD Prepayment Date of any outstanding Series of Notes, upon ten (10) Business Days’ prior written notice to the Indenture Trustee and each Rating Agency, the Company will be deemed to have paid and Issuer may obtain the Company and the Guarantor will be discharged release from any and all obligations in respect covenants of the Securities Indenture relating to ownership and operation of the Parking Facilities by delivering United States government securities that provide for payments which replicate the required payments due under the Transaction Documents, including any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect schedule Monthly Amortization Amount or Class B Note payments with respect to all of the Securities of such series Term Notes then Outstanding on each Payment Date, including the Indenture Trustee Fee and any other expenses and indemnity amounts due and owing to the Guarantee thereof (and the Indenture Trustee, at the expense Collection Account Bank, the Additional Account Bank, the Expense Reserve Account Bank, Workout Fees, Servicing Fees, Other Servicing Fees and any other amounts due and owing to the Servicer, if any, through the first Payment Date for each Series of Notes on which such Notes could be prepaid without payment of any Prepayment Consideration (including payment in full of the Company and principal of the Guarantor, shall execute proper instruments acknowledging the sameNotes on such first Payment Date); provided that the following conditions Issuer shall have been satisfied:
(a) the Company pay or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing deliver on the date of such deposit;
defeasance (dthe “Defeasance Date”) (A) all interest accrued and unpaid on the Company Outstanding Class Principal Balance of each Class of Notes to but not including the Defeasance Date (and, if the Defeasance Date is not a Payment Date, the interest that would have accrued to but not including the next Payment Date), (B) all other sums then due under each Class of Notes and all other Transaction Documents executed in connection therewith, including any costs incurred in connection with such defeasance, and (C) U.S. government securities providing for payments equal to an amount that would cause such payments to replicate the required payments due under the Transactions Documents through the first Payment Date for each Series of Notes on which such Notes could be prepaid without payment of any Prepayment Consideration . In addition, the Issuer shall have delivered deliver to the Servicer on behalf of the Indenture Trustee either (x1) a ruling directed to security agreement granting the Indenture Trustee received from the Internal Revenue Service to the effect that the Holders on behalf of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as Noteholders a result of such discharge under this Section 9.02 and will be subject to federal income tax first priority perfected security interest on the same amount and in U.S. government securities so delivered by the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or Issuer, (y2) an Opinion of Counsel as to the same effect as enforceability and perfection of such security interest, (3) a confirmation by an Independent certified public accounting firm that the ruling described in clause U.S. government securities so delivered are sufficient to pay all interest due from time to time after the Defeasance Date (xor if the Defeasance Date is not a Payment Date, due after the next Payment Date) above; and
(e) the Company has delivered and all principal due upon maturity for each Class of Notes, and all Indenture Trustee Fees, expenses and indemnity amounts due to the Trustee an Officers’ Certificate Indenture Trustee, the Collection Account Bank and an Opinion the Additional Account Bank and Workout Fees, if any and (4) a copy of Counsel, in each case stating the notice that all conditions precedent has been provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied withRating Agencies. The Issuer, pursuant to the security agreement described above, shall authorize and direct that the payments received from the U.S. government securities shall be made directly to the Indenture Trustee and applied to satisfy the obligations of the Company Issuer under the Notes and the Guarantor other Transaction Documents.
(b) If the Obligors will continue to own any material assets other than the U.S. government securities delivered in Sections 2.02 through 2.12connection with the defeasance, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicablethe Issuer shall establish or designate a special-purpose bankruptcy-remote successor entity acceptable to the Indenture Trustee (acting at the written direction of the Servicer), with respect to which a substantive non-consolidation Opinion of Counsel reasonably satisfactory to the Securities Indenture Trustee (consistent with the prior non-consolidation Opinion of such series Counsel most recently delivered to the Indenture Trustee) has been delivered to the Indenture Trustee and to transfer to that entity the Guarantee thereof pledged U.S. government securities. The new entity shall survive until such Securities are no longer outstanding. Thereafter, only assume the obligations of the Company Issuer under the Notes being defeased and the security agreement and the Obligors and the Holdco Guarantor shall be relieved of their obligations in Sections 8.07 and 9.05, respect thereof under the Transaction Documents. The Issuer shall pay Ten Dollars ($10) to such new entity as applicable, shall surviveconsideration for assuming such obligations.
Appears in 1 contract
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and the Company and the Guarantor will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Covenant Defeasance”);
(a) the Company or Issuer shall have irrevocably pledged to the Guarantor has irrevocably deposited in trust with the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government obligations accepted by the Securities of Bond Trustee ('the “Defeasance Pledce”) in such series, amounts as will be sufficient for the payment of the Principal principal (including if applicable premium payable upon exercise of a Call Option) and interest on the Securities of such series, money Outstanding Bonds to Maturity Date (or U.S. Government Obligations or redemption upon a combination thereof sufficient (unless such funds consist solely of money, in the opinion exercise of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trusteenotified Call Option), as the case may be;
(b) such deposit will not result in the Issuer shall, if required by the Bond Trustee, provide a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect legal opinion reasonable acceptable to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Bond Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series Bondholders will not recognize income, gain or loss for federal income tax purposes (hereunder US federal or Norwegian, if applicable) as a result of such discharge under this Section 9.02 the Defeasance Pledge and Covenant Defeasance, and will be subject to federal such income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance the Defeasance Pledge had not occurred;
(c) no Event of Default shall have occurred and be continuing on the date of establishment of the Defeasance Pledge, or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 181st day after the date of establishment of the pledge;
(yd) an Opinion neither the Defeasance Pledge nor the Covenant Defeasance results in a breach or violation of Counsel to any material agreement or instrument binding upon the same effect as Issuer, or the ruling described in clause (x) above; andarticles of association or other corporate documents governing the Issuer;
(e) the Company has Issuer shall have delivered to the Bond Trustee an Officers’ Certificate a certificate signed by its Chief Executive Officer that the Defeasance Pledge was not made by the Issuer with the intent of preferring the Bondholders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(f) the Issuer shall have delivered to the Bond Trustee any certificate or legal opinion reasonably required regarding the Covenant Defeasance or Defeasance Pledge (including certificate from its Chief Executive Officer and an Opinion of Counsel, in each case stating a legal opinion from its legal counsel to the effect that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series Covenant Defeasance have been complied with. The obligations ; and that the Defeasance Pledge (i) will not be subject to any rights of creditors of the Company Issuer, (ii) will constitute a valid, perfected and enforceable security interest in favour of the Bond Trustee for the benefit of the Bondholders, and (iii) will, after the 181st day following the establishment, the funds and assets so pledged will not be subject to the effects of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally under the laws of the jurisdiction where the Defeasance Pledge was established and the Guarantor corporate domicile of the Issuer.
18.2.2 Upon the exercise by the Issuer of its option under Clause 18.2.1;
(c) the Issuer shall be released from its obligations under all provisions in Sections 2.02 through 2.12Clause 13, 4.02except 13.2.1 (a), 8.07(e), 8.08(h) and (i). the Issuer shall not (and shall ensure that all Group Companies shall not) take any actions that may cause the value of the Security Interest created by this Covenant Defeasance to be reduced, 9.04 and 9.05shall at the request of the Bond Trustee execute, or cause to be executed, such further documentation and perform such other acts as applicablethe Bond Trustee may reasonably require in order for the Security Interests to remain valid, enforceable and perfected by the Bond Trustee for the account of the Bondholders; any Security Interests other than the Defeasance Pledge shall be discharged, and the Bond Trustee shall take all steps reasonably possible for it to cause such discharge to be effected, by way of deletion of the relevant Security Document from the relevant register, notice to third parties or as otherwise required;
(d) all other provisions of the Bond Agreement (except (a) remain fully in force without any modifications. (c) above) shall
18.2.3 All moneys amount covered by the Defeasance Pledge shall be applied by the Bond Trustee, in accordance with respect the provisions of this Bond Agreement, to the Securities payment to the Bondholders of such series all sums due to them under this Bond Agreement on the due date thereof. Any excess funds not required for the payment of principal, premium and interest to the Guarantee thereof Bondholders (including any expenses, fees etc. due to the Bond Trustee hereunder) shall survive until such Securities are no longer outstanding. Thereafter, only be returned to the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveIssuer.
Appears in 1 contract
Sources: Amendment and Restatement Agreement
Defeasance. Except as provided below(a) Borrower, in its sole discretion, shall have the right at any time after the Prepayment Lockout Release Date and prior to the Open Period Start Date to voluntarily defease the entire Loan and obtain a release of the lien of all of the Security Instruments by providing Lender with the Total Defeasance Collateral (hereinafter, a “Total Defeasance Event”), subject to the satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days’ notice (or such shorter period of time if permitted by Lender in its reasonable discretion) but not more than one hundred twenty (120) days’ notice specifying a date (the “Total Defeasance Date”) on which the Total Defeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date; (B) all other sums, if any, then due and payable under the Note, this Agreement, the Company will be deemed to have paid Security Instrument and the Company other Loan Documents through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (C) all reasonable and out-of-pocket costs and expenses related to escrow, closing, recording, legal, appraisal and other reasonable out-of-pocket fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Defeasance Collateral and the Guarantor will be discharged from any preparation of the Security Agreement and related documentation, and all obligations fees of the Rating Agencies; and (D) any documentary stamp, intangible or other similar taxes or similar charges or fees, in each case due in connection with the transfer or assumption of the Note and/or the Total Defeasance Event.
(iii) Borrower shall deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of Section 2.8(d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Securities of any series Defeasance Collateral Account and the Guarantee thereofTotal Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (A) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the provisions Total Defeasance Collateral; (B) if a Securitization has occurred (1) the REMIC Trust formed pursuant to such Securitization and/or any subsequent or prior Securitization of the Loan or any portion thereof or interest therein will each not fail to maintain their respective status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code as a result of a Total Defeasance Event pursuant to this Indenture will no longer Section 2.8 and (2) the Total Defeasance Event would neither (I) constitute a “significant modification” of the Loan within the meaning of Treasury Regulation Section 1.860G-2(b) nor (II) cause the Loan to fail to be in effect a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the IRS Code; and (C) a New Non-Consolidation Opinion with respect to the Securities of such series and Successor Borrower;
(vi) Borrower shall deliver to Lender a Rating Agency Confirmation as to the Guarantee thereof Total Defeasance Event;
(and the Trustee, at the expense of the Company and the Guarantor, vii) Borrower shall execute proper instruments acknowledging the same); provided deliver an Officer’s Certificate certifying that the following conditions shall requirements set forth in this Section 2.8 have been satisfied:;
(aviii) Borrower shall deliver a certificate of an Acceptable Accountant certifying that the Company Total Defeasance Collateral will generate monthly amounts equal to or greater than the Guarantor has irrevocably deposited Scheduled Defeasance Payments;
(ix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(x) Borrower shall pay all reasonable out-of-pocket costs and expenses of Lender incurred in trust connection with the Trustee as trust funds solely for Total Defeasance Event, including, without limitation, Lender’s reasonable out-of-pocket attorneys’ fees and expenses and the benefit fees and expenses of the Holders Rating Agencies.
(b) If Borrower has elected to defease the entire Note and the requirements of this Section 2.8 have been satisfied, the Property shall be released from the lien of the Securities Security Instrument and the Total Defeasance Collateral pledged pursuant to the Security Agreement shall be the sole source of such series, for payment collateral securing the Note. In connection with the release of the Principal lien, Borrower shall submit to Lender, not less than ten (10) days prior to the Total Defeasance Date (or such shorter time as is acceptable to Lender in its sole discretion), a release of lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction(s) in which the Property is located and shall contain standard provisions for such jurisdictions protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Applicable Law, and (ii) will affect such release in accordance with the terms of this Agreement. Borrower shall pay all reasonable out-of-pocket costs, taxes and expenses (other than any income, franchise or similar taxes of Lender) associated with the release of the lien of the Security Instrument, including Lender’s reasonable out-of-pocket attorneys’ fees. Lender shall, at Borrower’s sole cost and expense, reasonably cooperate in good faith with Borrower to avoid the incurrence of mortgage recording taxes in connection with a Total Defeasance Event.
(c) [Intentionally Omitted].
(d) On or before the date on which Borrower delivers the Total Defeasance Collateral, Borrower or Successor Borrower (as applicable) shall open at any Eligible Institution an Eligible Account (the “Defeasance Collateral Account”). The Defeasance Collateral Account shall contain only (i) Total Defeasance Collateral, and (ii) cash from interest and principal paid on the Securities Total Defeasance Collateral. All cash from interest and principal payments paid on the Total Defeasance Collateral shall be paid over to Lender on each Monthly Payment Date and applied first to accrued and unpaid interest and then to principal. Any cash from interest and principal paid on the Total Defeasance Collateral not needed to pay the Scheduled Defeasance Payments shall be paid to Borrower or Successor Borrower (as applicable). Borrower or Successor Borrower (as applicable) shall cause the Eligible Institution at which the Total Defeasance Collateral is deposited to enter into an agreement with Borrower or Successor Borrower (as applicable) and Lender, satisfactory to Lender in its reasonable discretion, pursuant to which such Eligible Institution shall agree to hold and distribute the Total Defeasance Collateral in accordance with this Agreement. Borrower or Successor Borrower (as applicable) shall be the owner of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment Defeasance Collateral Account and after payment of shall report all income accrued on Total Defeasance Collateral for federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal in its income tax on return (or in a consolidated, unitary or similar tax return of a group in which Borrower or Successor Borrower (as applicable) is a member, to the same amount extent required and/or permitted by Applicable Law, or, if Borrower or Successor Borrower (as applicable) is a disregarded entity for such tax purposes, the applicable tax return of the regarded owner of Borrower or Successor Borrower (as applicable)). Borrower shall prepay all cost and expenses associated with opening and maintaining the Defeasance Collateral Account. Lender shall not in any way be liable by reason of any insufficiency in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; andDefeasance Collateral Account.
(e) the Company has delivered In connection with a Total Defeasance Event under this Section 2.8, Borrower shall transfer and assign all obligations, rights and duties under and to the Trustee an Officers’ Certificate Note and an Opinion the Security Agreement, together with the Total Defeasance Collateral to a newly-created successor entity, which entity shall be a Single Purpose Entity and which entity shall be designated or established by Borrower and approved by Lender in its reasonable discretion (the “Successor Borrower”). Such Successor Borrower shall assume the obligations under the Note and the Security Agreement and Borrower shall be relieved of Counselits obligations under the Loan Documents (other than those obligations which by their terms survive a repayment, defeasance or other satisfaction of the Loan and/or a transfer of the Property in each case stating that connection with Lender’s exercise of its remedies under the Loan Documents). Borrower shall pay a minimum of $1,000 to any such Successor Borrower as consideration for assuming the obligations under the Note and the Security Agreement. Borrower shall pay all conditions precedent provided for herein relating reasonable out-of-pocket costs and expenses incurred by Lender in connection therewith, including, without limitation, Lender’s reasonable out-of-pocket attorney’s fees and expenses.
(f) Notwithstanding anything to the defeasance contemplated by contrary contained in this Section 9.02 2.8, the parties hereto hereby acknowledge and agree that after the Securitization of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicableLoan (or any portion thereof or interest therein), with respect to any Lender approval or similar discretionary rights over any matters contained in this Section (any such matter, a “Defeasance Approval Item”), such rights shall be construed such that Lender shall only be permitted to withhold its consent or approval with respect to any Defeasance Approval Item if the Securities same fails to meet the Prudent Lender Standard.
(g) For the avoidance of such series and doubt, in no event shall Borrower be permitted to effectuate a defeasance in connection with the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations release of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivean Individual Property or group of Individual Properties.
Appears in 1 contract
Defeasance. Except (a) When the principal or redemption price (as provided belowthe case may be) of, and interest on all Bonds issued hereunder have been paid, including without limitation the purchase price for Bonds tendered under Section 2.2 hereof, or provision has been made for payment of the same, together with the compensation of the Trustee and all other sums payable hereunder by the Issuer, the right, title and interest of the Trustee and the Credit Facility Trustee in and to the Trust Estate and the security interests shall thereupon cease, and the Trustee and the Credit Facility Trustee, on written demand of the Issuer, shall release this Indenture and the security interests and shall execute such documents to evidence such release as may be reasonably required by the Issuer and shall turn over to the Company will or to such person, body or authority as may be entitled to receive the same all balances then held by the Trustee or the Credit Facility Trustee hereunder; provided, that, if any payments have been received by the Trustee or the Credit Facility Trustee derived from draws by the Credit Facility Trustee under the Credit Facility in connection with such release, such balances shall be paid to the Credit Facility Issuer to the extent of such payments. If payment or provision therefor is made with respect to less than all of the Bonds, the particular Bonds (or portion thereof) for which provision for payment shall have been considered made shall be selected by lot by the Trustee and thereupon the Trustee shall take similar action for the release of this Indenture with respect to such Bonds. Notwithstanding anything to the contrary contained herein, Bonds purchased at the option of the owners thereof with moneys held by the Trustee pursuant to this Article XIV shall not be remarketed but shall be canceled by the Trustee.
(b) Provision for the payment of Bonds shall be deemed to have paid been made when the Trustee holds in the Bond Fund, in trust and irrevocably set aside exclusively for such payment, (1) moneys sufficient to make such payment provided that if a Credit Facility is then held by the Company Trustee or the Credit Facility Trustee, such moneys shall constitute Available Moneys or (2) noncallable Governmental Obligations maturing as to principal and interest in such amounts and at such times as will provide sufficient moneys without reinvestment to make such payment, and provided, that if a Credit Facility is then held by the Guarantor will be discharged from any Credit Facility Trustee, such Governmental Obligations shall have been on deposit with the Trustee in a separate and all obligations segregated account for a period of three hundred sixty-six (366) days during and prior to which no Event of Bankruptcy has occurred or which Governmental Obligations were purchased with Available Moneys.
(c) No Bonds in respect of which a deposit under subsection (b) above has been made shall be deemed paid within the Securities meaning of this Article unless the Trustee is satisfied that the amounts deposited are sufficient to make all payments that might become due on the Bonds, including purchase price payments for Bonds tendered at the option of the owners or purchased by the Company in lieu of redemption, if any. Notwithstanding the foregoing, no delivery to the Trustee under this subsection (c) shall be deemed a payment of any series and the Guarantee thereof, and Bonds which are to be redeemed prior to their stated maturity until such Bonds shall have been irrevocably called or designated for redemption on a date thereafter on which such Bonds may be redeemed in accordance with the provisions of this Indenture will no longer or the Issuer shall have given the Trustee, in form satisfactory to the Trustee, irrevocable instructions to give notice of redemption. Neither the obligations nor moneys deposited with the Trustee pursuant to this Section shall be withdrawn or used for any purpose other than, and shall be segregated and held in effect trust for, the payment of the principal of, redemption price of, purchase price if applicable of, and interest on the Bonds with respect to which such deposit has been made. In the Securities event that such moneys or obligations are to be applied to the payment of principal or redemption price of any Bonds more than sixty (60) days following the deposit thereof with the Trustee, the Trustee shall mail a notice stating that such moneys or obligations have been deposited and identifying the Bonds for the payment of which such moneys or obligations are being held to all owners of such series Bonds at their addresses shown on the Bond Register.
(d) Anything in Article XIV to the contrary notwithstanding, if moneys or Governmental Obligations have been deposited or set aside with the Trustee pursuant to this Article for the payment of the principal or redemption price, including purchase price if applicable, of the Bonds and the Guarantee thereof interest thereon and such moneys or Governmental Obligations do not constitute Available Moneys, no amendment to the provisions of this Article shall be made without the consent of the owner of each of the Bonds affected thereby.
(e) Notwithstanding the foregoing, those provisions relating to the purchase of Bonds upon the demand of any Bondholders, the maturity of Bonds, interest payments and dates thereof, and the dates, premiums and notice requirements for optional and mandatory redemption or purchase and the Trustee's remedies with respect thereto, at and provisions relating to exchange, transfer and registration of Bonds, replacement of mutilated, destroyed, lost or stolen Bonds, the expense safekeeping and cancellation of Bonds, non-presentment of Bonds, the holding of moneys in trust and repayments to the Company or the Credit Facility Issuer from the Bond Fund and the duties of the Trustee in connection with all of the foregoing and the fees, expenses and indemnities of the Trustee and the Credit Facility Trustee, shall remain in effect and shall be binding upon the Trustee, the Credit Facility Trustee, the Issuer, the Company and the Guarantor, shall execute proper instruments acknowledging Bondholders notwithstanding the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit release and discharge of the Holders lien of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveIndenture.
Appears in 1 contract
Sources: Trust Indenture (Laralev Inc)
Defeasance. Except as provided belowWhen the principal of, and premium (if any) ---------- and interest on, all Bonds issued hereunder have been paid, or provision has been made for payment of the same and any tender purchase price which may become payable pursuant to Article IV, together with the compensation and expenses of the Trustee and all other sums payable hereunder by the Issuer or the Borrower have been paid or provision has been made for such payment, the Company will be deemed to have paid right, title and the Company and the Guarantor will be discharged from any and all obligations in respect interest of the Securities of any series Trustee in and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (Trust Estate shall thereupon cease and the Trustee, at on the expense written demand of the Company and Issuer or the GuarantorBorrower, shall release this Indenture and shall execute proper instruments acknowledging such documents to evidence such release as may be reasonably required by the same)Issuer or the Borrower and shall turn over to the Borrower or to such Person as may be entitled to receive the same all balances then held by it hereunder not required for the payment of the Bonds and such other sums and shall surrender the Letter of Credit to the Bank; provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit any proceeds of the Holders Letter of the Securities of such series, Credit not required for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Bonds shall be turned over to the Trustee) without consideration of any reinvestment Bank and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will in the event there has been a drawing under the Letter of Credit for which the Bank has not result in a breach or violation of, or constitute a default under, this Indenture been fully reimbursed pursuant to the Reimbursement Agreement or any other material agreement or instrument obligations are then due and owing to which the Company or Bank under the GuarantorReimbursement Agreement, the Trustee shall assign and turn over to the Bank, as successor, subrogee or otherwise, all of the case may beTrustee's right, title and interest under this Indenture, all balances held hereunder (excluding the Rebate Fund) not required for the payment of the Bonds and such other sums and the Trustee's right, title and interest in, to and under the Financing Agreement and any other property comprising the Trust Estate. If payment or provision therefor is a party or by which it is bound;
(c) no Default made with respect to less than all of the Securities of such series Bonds, the particular Bonds (or portions thereof) for which provision for payment shall have occurred and been considered made shall be continuing on the date of selected by lot or by such deposit;
(d) the Company shall have delivered to other method as the Trustee either (x) a ruling directed to deems fair and appropriate, and thereupon the Trustee received from shall take similar action for the Internal Revenue Service to the effect that the Holders release of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, Indenture with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveBonds.
Appears in 1 contract
Sources: Trust Indenture (Innovative Solutions & Support Inc)
Defeasance. Except as provided below(1) At any time that any series of Debt Securities is outstanding (the “Specified Series”), the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the TrusteeTrustee will, at the written request and expense of the Company Partnership, execute and deliver to the Partnership such deeds and other instruments as are necessary to release the Partnership, subject to this Article 7, from of its obligations under this Indenture and the GuarantorSeries Supplement relating to the Specified Series, other than the Surviving Provisions (which shall execute proper instruments acknowledging survive until otherwise terminated or discharged hereunder), subject to the same); provided that satisfaction of the following conditions shall have been satisfiedconditions:
(a) the Company or Partnership shall have delivered to the Guarantor has irrevocably deposited in trust with Indenture Trustee evidence to the Trustee as trust funds solely for the benefit reasonable satisfaction of the Holders of Indenture Trustee that the Securities of such series, Partnership has (i) deposited sufficient funds for payment of the Principal of all principal, Premium (if any), interest and interest other amounts due or to become due on the Securities of such seriesSpecified Series, money (ii) deposited sufficient funds or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in made provision for the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federalexpenses of the Indenture Trustee to carry out its duties under this Indenture, state and local (iii) deposited sufficient funds for the payment of taxes for which the Indenture Trustee is or other charges and assessments in respect thereof may be liable or otherwise arising or payable by the TrusteePartnership with respect to all deposited funds or other provision for payment, in each case irrevocably pursuant to pay the terms of (y) a trust agreement in form and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements substance satisfactory to the Partnership and the Indenture Trustee, or (z) other arrangements in compliance with Section 7.5(3), as the case may be;
(b) such the Partnership shall have delivered to the Indenture Trustee an opinion of Counsel acceptable to the Indenture Trustee to the effect that the holders of the Specified Series will not be subject to any taxes as a result of the exercise by the Partnership of this defeasance option and that the holders of the Specified Series will be subject to taxes, including those in respect of income (including taxable capital gain) in the same amount, in the same manner and at the same time or times as would have been the case if the Partnership had not exercised its option to defease the Specified Series;
(c) no Event of Default has occurred and is continuing on the date of the deposit will referred to in Section 7.5(1)(a);
(d) the making of the deposits referred to in Section 7.5(1)(a) does not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, Partnership is a party or by which it the Partnership is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(de) the Company Partnership shall have delivered to the Indenture Trustee either (x) a ruling directed Certificate stating that to the Trustee received from the Internal Revenue Service to the effect that the Holders best of the Securities belief of the officer signing such series will Certificate, the deposit referred to in Section 7.5(1)(a) was not recognize incomemade by the Partnership with the intent of (i) preferring the holders of the Specified Series over the other creditors of the Partnership with the intent of defeating, gain hindering, delaying or loss for federal income tax purposes as a result defrauding creditors of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred Partnership or others or (yii) an Opinion of Counsel to completing a “transfer at under value” as defined under the same effect as the ruling described in clause Bankruptcy and Insolvency Act (x) aboveCanada); and
(ef) the Company has Partnership shall have delivered to the Indenture Trustee an Officers’ a Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein or relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with.
(2) The Partnership will be deemed to have made due provision for the depositing of sufficient funds if it deposited or caused to be deposited Payout Securities with the Indenture Trustee under the terms of an irrevocable trust agreement, solely for the benefit of the holders of a Specified Series stated therein, except for funds deposited in satisfaction of Sections 7.1(1)(a)(ii) and 7.1(1)(a)(iii), which shall be for the benefit of the Indenture Trustee. The “Payout Securities” means (i) cash in Canadian dollars or (ii) securities denominated in Canadian dollars constituting direct obligations of Canada or an agency or instrumentality of Canada that are not subject to prepayment, redemption or call at the Company option of the issuer thereof, or (iii) any combination of the foregoing, in each case which will be sufficient, in the opinion of a firm of independent chartered professional accountants or a major Canadian investment dealer acting reasonably and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect acceptable to the Securities Indenture Trustee, to provide for payment in full of such series all principal, Premium (if any), interest and other amounts due or to become due on the Guarantee Specified Series in accordance with the terms thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveall other sums payable pursuant to Section 7.5(1)(a).
Appears in 1 contract
Sources: Trust Indenture (SmartStop Self Storage REIT, Inc.)
Defeasance. Except as provided below(a) If the Corporation shall pay or cause to be paid to the Bondholders of a Series the principal or Redemption Price of and interest thereon, at the times and in the manner stipulated therein, herein, and in the applicable Supplemental Indenture, then the pledge of the Trust Estate and all other rights granted hereby to such Bonds shall be discharged and satisfied. In such event, the Company will Trustee shall, upon the request of the Corporation, execute and deliver such documents to evidence such discharge and satisfaction as may be reasonably required by the Corporation, and all money or investments thereof held by it pursuant hereto and to the applicable Supplemental Indenture which are not required for the payment or redemption of Bonds of such Series shall be paid or delivered by the Trustee as follows: First, to the Arbitrage Rebate Fund, the amount required to be deposited therein in accordance with the direction of an Authorized Officer of the Corporation; second, to each Provider the Provider Payments which have not been repaid, pro rata, based upon the respective Provider Payments then unpaid to each Provider; and, then, the balance thereof to the Corporation. Such money or investments thereof so paid or delivered shall be released from any trust, pledge, lien, encumbrance, or security interest created hereby.
(b) Bonds for the payment or redemption of which money shall have been set aside and shall be held in trust by the Trustee (through deposit of money for such payment or redemption or otherwise) at the maturity or redemption date thereof shall be deemed to have been paid within the meaning and with the Company and the Guarantor will be discharged from any and all obligations effect expressed in respect paragraph (a) of the Securities this Section. All Outstanding Bonds of any series Series or any maturity within a Series or a portion of a maturity within a Series shall prior to the maturity or redemption date thereof be deemed to have been paid within the meaning and with the Guarantee thereof, and the provisions effect expressed in paragraph (a) of this Indenture will no longer Section if:
(i) in case any of said Bonds are to be in effect with respect redeemed on any date prior to their maturity, the Securities of such series and the Guarantee thereof (and Corporation shall have given to the Trustee, at the expense in form satisfactory to it, irrevocable instructions to give as provided in Article IV hereof notice of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions redemption on said date of such Bonds;
(ii) there shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for either money in an amount which shall be sufficient, or Defeasance Securities the benefit of the Holders of the Securities of such series, for payment of the Principal principal of and interest on which when due will provide money which, together with the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, if any, deposited with the Trustee at the same time, shall be sufficient in the opinion judgment of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered verification agent to pay when due the principal, or Redemption Price, if applicable, and interest due and to become due on said Bonds on and prior to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes redemption date or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee)date thereof, as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.
Appears in 1 contract
Sources: Master Trust Indenture
Defeasance. Except as provided below(a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the Release Date and prior to the Maturity Date to voluntarily defease the entire Loan and obtain a release of the lien of the Security Instrument by providing Lender with the Total Defeasance Collateral (hereinafter, a “Total Defeasance Event”), subject to the satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (or such shorter period of time if permitted by Lender in its reasonable discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which the Total Defeasance Event is to occur;
(ii) Unless otherwise agreed to in writing by ▇▇▇▇▇▇, Borrower shall pay to Lender (A) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the next occurring Monthly Payment Date); (B) all other sums, if any, due and payable under the Note, this Agreement, the Company will be deemed to have paid Security Instrument and the Company other Loan Documents through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (C) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Defeasance Collateral and the Guarantor will be discharged from preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (D) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Total Defeasance Event;
(iii) Borrower shall deposit the Total Defeasance Collateral into the Defeasance Collateral Account and all obligations otherwise comply with the provisions of Section 2.8(d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Securities of any series Defeasance Collateral Account and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beTotal Defeasance Collateral;
(bv) such deposit Borrower shall deliver to Lender (i) an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (A) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral; (B) the Total Defeasance Event will not result in a breach deemed exchange for purposes of the IRS Code and will not adversely affect the status of the Note as indebtedness for federal income tax purposes; and (C) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or violation of, or constitute applicable state law; (ii) a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default REMIC Opinion with respect to the Securities of such series shall have occurred Total Defeasance Event; and be continuing on the date of such deposit(iii) a New Non-Consolidation Opinion with respect to Successor Borrower;
(dvi) the Company Borrower shall have delivered deliver to Lender a Rating Agency Confirmation as to the Trustee either Total Defeasance Event;
(xvii) a ruling directed to the Trustee received from the Internal Revenue Service to the effect Borrower shall deliver an Officer’s Certificate certifying that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under requirements set forth in this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would 2.8 have been satisfied;
(viii) Borrower shall deliver a certificate of a nationally recognized public accounting firm acceptable to Lender certifying that the case if such deposit and defeasance had not occurred Total Defeasance Collateral will generate monthly amounts equal to or (y) an Opinion of Counsel to greater than the same effect as the ruling described in clause (x) aboveScheduled Defeasance Payments; and
(eix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request.
(b) If ▇▇▇▇▇▇▇▇ has elected to defease the Company has delivered entire Loan and the requirements of this Section 2.8 have been satisfied, the Property shall be released from the lien of the Security Instrument and the Total Defeasance Collateral pledged pursuant to the Trustee an Officers’ Certificate and an Opinion Security Agreement shall be the sole source of Counselcollateral securing the Loan. In connection with the release of the lien, in each case stating that all conditions precedent provided for herein relating Borrower shall submit to Lender, not less than fifteen (15) Business Days prior to the defeasance contemplated Total Defeasance Date (or such shorter time as is acceptable to Lender in its reasonable discretion), a release of lien (and related Loan Documents) for execution by this Section 9.02 ▇▇▇▇▇▇. Such release shall be in a form appropriate in the jurisdiction in which the Property is located and that contains standard provisions protecting the rights of the Securities releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of such series have been complied withthis Agreement. The obligations Except as set forth in this Article 2, no repayment, prepayment or defeasance of all or any portion of the Company and Loan shall cause, give rise to a right to require, or otherwise result in, the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations release of the Company and lien of the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveSecurity Instrument.
Appears in 1 contract
Sources: Loan Agreement (Clipper Realty Inc.)
Defeasance. Except as provided below(a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the Release Date and prior to the Maturity Date to voluntarily defease all or any portion of the entire Loan and obtain a release of the lien of the applicable Security Instrument or Security Instruments (hereinafter, a “Defeasance Event”), subject to the satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Defeasance Date”) on which the Defeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due and payable on the Loan to and including the Defeasance Date (provided, that, if such Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the next occurring Monthly Payment Date); (B) all other sums, if any, due and payable under the Note, this Agreement, the Company will be deemed to have paid Security Instruments and the Company other Loan Documents through and including the Defeasance Date (or, if the Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (C) all escrow, closing, recording, legal (provided such legal fees, costs and expenses are reasonable), Rating Agency and other customary fees, costs and expenses paid or incurred by Lender or its agents in connection with the Defeasance Event, the release of the lien of the applicable Security Instrument on the applicable Individual Property, the review of the proposed Defeasance Collateral and the Guarantor will be discharged from preparation of the Security Agreement and related documentation; and (D) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Defeasance Event;
(iii) Borrower shall deposit the Defeasance Collateral into the Defeasance Collateral Account and all obligations otherwise comply with the provisions of Section 2.8(d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Securities Defeasance Collateral Account and the Defeasance Collateral;
(v) In the event only a portion of the Loan is the subject of the Defeasance Event, Borrower shall prepare all necessary documents to modify this Agreement and to amend and restate the Note and issue two substitute notes for the Note, one note having a principal balance equal to the defeased portion of the original Note and a maturity date equal to the Maturity Date (the “Defeased Note”) and the other note having a principal balance equal to the undefeased portion of the original Note and a maturity date equal to the Maturity Date (the “Undefeased Note”). The Defeased Note and the Undefeased Note shall have identical terms as the original Note except for the principal balance and the maturity date. A Defeased Note cannot be the subject of any series further Defeasance Event. The Undefeased Note may be the subject of a further Defeasance Event in accordance with the terms and the Guarantee thereof, and the provisions of this Indenture will no longer be Section 2.8 (the term “Note”, as used in effect with respect this clause (v) for such purpose, being deemed to refer to the Securities Undefeased Note that is the subject of such series and the Guarantee thereof (and the Trusteefurther defeasance), at the expense of the Company and the Guarantorprovided, shall execute proper instruments acknowledging the same); provided however, that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered notwithstanding anything to the Trustee) without consideration of any reinvestment and after payment of all federalcontrary contained herein, state and local taxes or other charges and assessments no such partial defeasance shall take place unless the conditions outlined in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beSection 2.9 are satisfied;
(bvi) such deposit Borrower shall deliver to Lender (1) an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, among other things, that (I) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Defeasance Collateral; (II) the Defeasance Event will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which deemed exchange for purposes of the Company IRS Code and will not adversely affect the status of the Note or the GuarantorDefeased Note, if applicable, as indebtedness for federal income tax purposes; and (III) delivery of the case may be, is Defeasance Collateral and the grant of a party security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or by which it is bound;
applicable state law; (c2) no Default a REMIC Opinion with respect to the Securities of such series shall have occurred Defeasance Event, and be continuing on the date of such deposit(3) a New Non-Consolidation Opinion with respect to Successor Borrower;
(dvii) the Company Borrower shall have delivered deliver to Lender a Rating Agency Confirmation as to the Trustee either Defeasance Event;
(viii) Borrower shall deliver an Officer’s Certificate certifying that the requirements set forth in this Section 2.8 have been satisfied;
(ix) Borrower shall deliver a certificate of a “big four” (excluding ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) a ruling directed to Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request;
(xi) Borrower shall pay all actual costs and expenses of Lender incurred in connection with the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize incomeDefeasance Event, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 including Lender’s reasonable attorneys’ fees and will be subject to federal income tax on the same amount expenses and in the same manner Rating Agency fees and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveexpenses; and
(exii) The Defeasance Event shall be permitted under REMIC Requirements in effect as of each of (I) the Company has delivered to Defeasance Notice Date and (II) the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 date of the Securities of such series have been complied with. The obligations consummation of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveDefeasance Event.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital Trust III, Inc.)
Defeasance. Except (A) If the Issuer shall pay or cause to be paid, or there shall be otherwise paid or provision for payment made to or for the Owners of the Bonds the principal, premium, if any, and interest due or to become due thereon at the times and in the manner stipulated therein, and if the Issuer shall keep, perform and observe all the covenants and promises in the Bonds and in this Indenture expressed as to be kept, performed and observed by it or on its part, and shall pay or cause to be paid to the Trustee all sums of money due or to become due according to the provisions hereof, then this Indenture and the lien, rights and interests created hereby shall cease, determine and become null and void (except as to any surviving rights of payment, registration, transfer or exchange of Bonds herein provided belowfor), whereupon the Trustee upon written request of an Authorized Issuer Representative shall cancel and discharge this Indenture, and execute and deliver to the Issuer such instruments in writing as shall be requested by an Authorized Issuer Representative and requisite to discharge this Indenture, and release, assign and deliver unto the Issuer any and all the estate, right, title and interest in and to any and all rights assigned or pledged to the Trustee or otherwise subject to this Indenture, except amounts in the Bond Fund required to be paid to the Borrower under Section 6.15 hereof and except moneys or securities held by the Trustee for the payment of the principal of and premium, if any, and interest on, and purchase prices of, the Company will Bonds. Notwithstanding the foregoing, under no circumstances may the Issuer or the Borrower receive any funds derived from a draw on any Letter of Credit, Liquidity Facility, Bond Insurance or moneys held for the payment of particular Bonds.
(B) Any Bond or Authorized Denomination thereof shall be deemed to be paid within the meaning of this Indenture when (a) payment of the principal of and premium, if any, on such Bond or Authorized Denomination thereof, plus interest thereon to the due date thereof (whether such due date is by reason of maturity or upon redemption as provided herein) either (i) shall have paid been made or caused to be made in accordance with the terms thereof, (ii) shall have been provided for by depositing sufficient amounts as described in clause (1) and/or (2) below for such payment with the Trustee and the Company due date of such principal, interest and premium, if any, has occurred, or (iii) in the case of a Bond which bears interest at a Flexible Rate or a Term Rate, shall have been provided for by irrevocably depositing with the Trustee in trust and irrevocably setting aside exclusively for such payment on such due date (which due date shall be in the case of a Bond bearing interest at a Flexible Rate no later than the Interest Payment Date for the then current Flexible Segment for such Bond and in the case of a Bond bearing interest at a Term Rate no later than the last Interest Payment Date for the then current Term Rate Period for such Bond) (1) cash (insured at all times by the Federal Deposit Insurance Corporation or otherwise collateralized with obligations described in clause (2) following), or (2) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America maturing as to principal and interest in such amount and at such time as will insure the availability of sufficient moneys to make such payment, and (b) all necessary and proper fees, compensation and expenses of the Trustee pertaining to any such deposit shall have been paid or the payment thereof provided for to the satisfaction of the Trustee; provided, however, that no Bond shall be deemed paid pursuant to this Article VIII prior to the due date for the payment of principal, premium if any, and interest thereon unless there shall have been delivered an opinion of Bond Counsel to the effect that such treatment will not adversely affect the Tax-Exempt status of any Bonds hereunder and will not cause such Bonds to be treated as sold or otherwise disposed of for the purposes of Section 1001 of the 1986 Code (or any successor provision). At such times as a Bond or Authorized Denomination thereof shall be deemed to be paid hereunder, as aforesaid, such Bond or Authorized Denomination thereof shall no longer be secured by or entitled to the benefits of this Indenture (other than Sections 2.04 and 2.08 hereof in the case of a deposit under clause (a)(iii) above), except for the purposes of any such payment from such moneys or government obligations referred to in clause (2) above.
(C) Notwithstanding the foregoing paragraph, in the case of a Bond or Authorized Denomination thereof which by its terms may be redeemed prior to the stated maturity thereof, no deposit under clause (a)(iii) of the immediately preceding paragraph shall be deemed a payment of such Bond or Authorized Denomination thereof as aforesaid until: (a) proper notice of redemption of such Bond or Authorized Denomination thereof shall have been previously given in accordance with Article III of this Indenture, or in the event said Bond or Authorized Denomination thereof is not to be redeemed within the succeeding seventy-five (75) days, until the Borrower shall have given the Trustee on behalf of the Issuer, in form satisfactory to the Trustee, irrevocable instructions to notify, as soon as practicable, the Owner of such Bond or Authorized Denomination thereof in accordance with Article III hereof, that the deposit required by (a)(iii) above has been made with the Trustee and that said Bond or Authorized Denomination thereof is deemed to have been paid in accordance with this Article and stating the maturity or redemption date upon which moneys are to be available for the payment of the principal of and the Guarantor will be discharged from applicable premium, if any, on said Bond or Authorized Denomination thereof, plus interest thereon to the due date thereof, or (b) the maturity of such Bond or Authorized Denomination thereof.
(D) Notwithstanding any and all obligations in respect of the Securities provision of any series and the Guarantee thereof, and other Article of this Indenture which may be contrary to the provisions of this Indenture will no longer Article, all moneys or government obligations set aside and held in trust pursuant to the provisions of this Article for the payment of Bonds or Authorized Denominations thereof (including interest and premium thereon, if any) shall be in effect applied to and used solely for the payment of the particular Bonds or Authorized Denominations thereof (including interest and premium thereon, if any) with respect to which such moneys and government obligations have been so set aside in trust.
(E) Notwithstanding anything herein to the Securities of such series contrary, in the event that the principal and/or interest due on the Bonds shall be paid by the Bond Insurer pursuant to the Bond Insurance, the Bonds shall remain Outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, and the Guarantee thereof (assignment and the Trustee, at the expense pledge of the Company Trust Estate and all covenants, agreements and other obligations of the Guarantor, Issuer to the registered owners shall execute proper instruments acknowledging the same); provided that the following conditions continue to exist and shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for run to the benefit of the Holders Bond Insurer, and the Bond Insurer shall be subrogated to the rights of such registered owners.
(F) Anything in Article XI hereof to the contrary notwithstanding, if moneys or government obligations have been deposited or set aside with the Trustee pursuant to this Article for the payment of Bonds or Authorized Denominations thereof and the interest and premium, if any, thereon and such Bonds or Authorized Denominations thereof and the interest and premium, if any, thereon shall not have in fact been actually paid in full, no amendment to the provisions of this Article shall be made without the consent of the Securities Owner of such series, for payment each of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveBonds affected thereby.
Appears in 1 contract
Defeasance. Except as provided belowThe Owner Trustee may, at any time, defease the Company will interest of the Indenture Trustee in the Indenture Estate in whole, but not in part, through the deposit with the Defeasance Trustee, in accordance with the provisions of this Section 10.05, of cash and/or Government Obligations; provided, however, that such defeasance shall not be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations applicable in respect of the Securities Series SWA 1995 Trust N396SW-I Certificates. Such deposit shall be made pursuant to a declaration or other appropriate instrument of any series trust satisfactory in form and substance to the Defeasance Trustee and the Guarantee thereofIndenture Trustee; such deposit shall be absolute and irrevocable and the instrument of trust shall expressly provide that the Owner Trustee shall have no further title to or interest in or power to direct the use or application of the cash and/or Government Obligations so deposited or any of the proceeds arising therefrom; such instrument shall state that the trust created thereby and the cash and/or Government Obligations deposited pursuant thereto are for the sole and exclusive benefit of the Holders and shall expressly provide that the Defeasance Trustee shall apply such cash and payments of principal and/or interest on such Government Obligations to, and only to, the punctual payment of the principal and interest on the Certificates as and when such payments become due (such declaration or instrument to contain appropriate provisions for the recording of this transfers of Certificates and the names and addresses of the Holders); and the Owner Trustee shall agree to pay, as the same shall become due and payable, all fees, costs and charges of the Defeasance Trustee under such instrument of trust, including those which may become payable after the date the conditions hereinbelow specified have been met. Upon compliance with the following conditions, and provided, that no Indenture will no longer Event of Default or Indenture Default shall have occurred and be continuing on a date 91 days after the date of the deposit of Government Obligations and/or cash with the Defeasance Trustee as provided in effect Subsection A below, the Owner Trustee's obligations with respect to the Securities Certificates will be discharged and this Indenture shall terminate as provided in Section 10.01:
A. the Owner Trustee shall have deposited with the Defeasance Trustee absolutely and irrevocably (irrespective of such series whether the conditions in Subsections B, C, D and the Guarantee thereof (and the Trustee, at the expense E of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall this Section 10.05 have been satisfied:)
(a1) cash and/or (2) Government Obligations which through the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by in accordance with their terms, without any reinvestment or further investment of the Trusteeprincipal of or interest earned on such Government Obligations, will absolutely and unconditionally provide in any and all circumstances not later than one day before each Payment Date an amount sufficient to pay and discharge the Principal payment of principal and accrued interest to be due and payable on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bePayment Date;
(b) such deposit will not result in a breach B. no Indenture Event of Default or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company deposit of cash and/or Government Obligations as contemplated hereby; TRUST INDENTURE AND SECURITY AGREEMENT [N396SW] -52- 59 C. the Owner Trustee shall have delivered to the Defeasance Trustee either (x) a ruling directed and to the Trustee received from Certificate Holders written confirmation by a nationally recognized firm of independent public accountants (other than the Internal Revenue Service accounting firm then serving as Shawmut Bank Connecticut, National Association's or the Owner Participant's regular auditors) selected by the Owner Trustee, the form and substance of which confirmation and the identity of such accounting firm shall be satisfactory to the effect Indenture Trustee, that the Holders Government Obligations deposited for payment of the Securities Certificates, together with any cash deposited by the Owner Trustee, are sufficient to satisfy the requirements of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.Subsection A hereof;
Appears in 1 contract
Sources: Trust Indenture and Security Agreement (Southwest Airlines Co)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from On any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect date prior to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that Early Amortization Period on which the following conditions shall have been satisfied:
: (ai) the Company Transferor has deposited (x) in the Principal Funding Account, an amount equal to the outstanding principal balance of the Class A Certificates, which amount will be invested in Eligible Investments and (y) in the Reserve Account an amount equal to or greater than the Guarantor has irrevocably deposited in trust with Covered Amount, as estimated by the Trustee as trust funds solely Transferor, for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on period from the date of such deposit;
the deposit to the Principal Funding Account through the Class A Expected Final Payment Date; (dii) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company Transferor has delivered to the Trustee an Officers’ Certificate opinion of counsel to the effect that such deposit and termination of obligations as described below will not result in the Trust being required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and an Opinion opinion of Counselcounsel to the effect that following such deposit none of the Trust, in each case the Reserve Account or the Principal Funding Account will be deemed to be an association (or publicly traded partnership) taxable as a corporation; (iii) the Transferor has delivered to the Trustee a certificate of an officer of the Transferor stating that all conditions precedent provided for herein relating the Transferor reasonably believes that such deposit and termination of its obligations will not constitute an Early Amortization Event or any event that, with the giving of notice or the lapse of time, would constitute an Early Amortization Event or a Series 1997-1 Early Amortization Event to occur; and (iv) the Rating Agency Condition shall have been satisfied; then, the Series 1997-1 Certificates will no longer be entitled to the defeasance contemplated by this Section 9.02 security interest of the Securities Trust in the Receivables and, except those set forth in clause (i) above, other Trust assets ("Defeasance"), and the Investor Percentages applicable to the allocation to the Series 1997-1 Certificateholders of such series have been complied withCollections of Principal Receivables, Finance Charge Receivables and Defaulted Receivables will be reduced to zero. The obligations Upon the satisfaction of the Company and foregoing conditions, the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect Class B Invested Amount will be reduced to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivezero.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Dayton Hudson Receivables Corp)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from (a) Notwithstanding any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect Article 2 to the Securities contrary, at any time following the earlier of such series (1) the expiration of the REMIC Prohibition Period, or (2) three (3) years from the first Payment Date, Borrower may cause the release of the Property from the Lien of the Mortgage and the Guarantee thereof (and other Loan Documents upon the Trustee, at the expense satisfaction of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfiedconditions:
(ai) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit no Event of the Holders of the Securities of such series, for payment of the Principal of Default shall have occurred and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bebe continuing;
(bii) not less than thirty (30) (but not more than ninety (90)) days prior written notice shall be given to Lender specifying a date on which the Defeasance Collateral is to be delivered (the “Release Date”); provided, however, that Borrower shall have the right to cancel or extend (by no more than thirty (30) days) such deposit will notice by providing Lender with notice of cancellation or extension not less than ten (10) days prior to the scheduled Release Date, provided that Borrower shall pay all of Lender’s costs and expenses incurred as a result of such cancellation or extension;
(iii) all sums due under this Agreement, the Note and under the other Loan Documents up to the Release Date, including, without limitation, all fees, costs and expenses incurred by Lender and its agents in connection with such release (including, without limitation, reasonable legal fees and expenses for the review and preparation of the Defeasance Security Agreement and of the other materials described in Section 2.7(a)(iv) below and any related documentation, and any servicing fees, Rating Agency fees or other costs related to such release), shall be paid in full on or prior to the Release Date;
(iv) Borrower shall deliver to Lender on or prior to the Release Date:
(A) a breach pledge and security agreement, in form and substance which would be satisfactory to a prudent lender, creating a first priority security interest in favor of Lender in the Defeasance Collateral (the “Defeasance Security Agreement”);
(B) direct non-callable obligations of the United States of America or, to the extent satisfying Rating Agency criteria, other obligations which are “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940 that provide for payments on a Business Day prior and as close as possible to each successive Payment Date after the Release Date through the end of the Lockout Period, with each such payment being equal to or violation ofgreater than the amount of the corresponding Monthly Payment Amount required to be paid under this Agreement and the Note and all amounts necessary to pay the outstanding principal balance and all other amounts due and payable on the day the Lockout Period ends (the “Defeasance Collateral”), duly endorsed by the holder thereof as directed by Lender or constitute accompanied by a default underwritten instrument of transfer in form and substance which would be satisfactory to a prudent lender (including, this Indenture or any other material agreement or instrument to which without limitation, such certificates, documents and instruments as may be required by the Company depository institution holding such securities or the Guarantorissuer thereof, as the case may be, to effectuate book entry transfers and pledges through the book entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement the first priority security interest therein in favor of Lender in conformity with all applicable state and federal laws governing granting of such security interests;
(C) a certificate of Borrower certifying that all of the requirements set forth in this Section 2.7(a) have been satisfied;
(D) one or more opinions of counsel for Borrower in form and substance and delivered by counsel which would be reasonably satisfactory to a prudent lender stating, among other things, that (1) Lender has a perfected first priority security interest in the Defeasance Collateral and that the Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, and (2) the release of the lien of the Mortgage and the pledge of Defeasance Collateral will not directly or indirectly result in or cause any REMIC Trust that holds the Note to fail to maintain its status as a party or REMIC Trust;
(E) a certificate in form and scope which would be satisfactory to a prudent lender from an independent certified public accountant acceptable to Lender certifying that the Defeasance Collateral will generate amounts sufficient to make all payments of principal and interest due under this Agreement and the Note (including the scheduled outstanding principal balance of the Loan on the last day of the Lockout Period);
(F) such other certificates, opinions, documents and instruments as a prudent lender would reasonably require; and
(G) in the event the Loan is held by a REMIC Trust and if required by Lender, Lender has obtained a Rating Agency Confirmation.
(b) Upon compliance with the requirements of Section 2.7(a), the Property shall be released from the Lien of the Mortgage and the other Loan Documents, and the Defeasance Collateral shall constitute collateral which it is bound;shall secure the Note and all other obligations under the Loan Documents. Lender shall, at Borrower’s expense, execute and deliver any agreements reasonably requested by Borrower to release the lien of the Mortgage and the other Loan Documents from the Property.
(c) no Default with respect As a condition to the Securities release of the Property in accordance with Section 2.7, Borrower shall assign all its obligations and rights under this Agreement and the Note, together with the pledged Defeasance Collateral, to a successor entity designated by Borrower and approved by Lender in its reasonable discretion (“Successor Borrower”). Lender’s right to approve the Successor Borrower shall, at the sole option of Bank of America, N.A., be exercised by Bank of America, N.A. and shall be retained by Bank of America, N.A. (or any successor or assign pursuant to an assignment of such series retained rights separate and apart from the transfer or Securitization of all or any portion of the Loan), notwithstanding any transfer or Securitization of all or any portion of the Loan. Successor Borrower shall have occurred execute an assignment and assumption agreement in form and substance which would be continuing on reasonably satisfactory to a prudent lender pursuant to which it shall assume Borrower’s obligations under this Agreement, the date Note and the Defeasance Security Agreement. As conditions to such assignment and assumption, Borrower shall (i) deliver to Lender one or more opinions of counsel in form and substance and delivered by counsel which would be reasonably satisfactory to a prudent lender stating, among other things, that such deposit;assignment and assumption agreement is enforceable against Borrower and the Successor Borrower in accordance with its terms and that this Agreement, the Note, the Defeasance Security Agreement and the other Loan Documents, as so assigned and assumed, are enforceable against the Successor Borrower in accordance with their respective terms, and opining to such other matters relating to Successor Borrower and its organizational structure as Lender may reasonably require, and (ii) pay all fees, costs and expenses incurred by Lender or its agents and Successor Borrower in connection with such assignment and assumption (including, without limitation, reasonable legal fees and expenses and for the review of the proposed transferee and the preparation of the assignment and assumption agreement and related certificates, documents and instruments and any fees payable to any Rating Agencies and their counsel in connection with the issuance of the confirmation referred to above, and excluding any assumption fee which may otherwise be due pursuant to the other Loan Documents). Upon such assignment and assumption, Borrower shall be relieved of its obligations under this Agreement and the Note, the other Loan Documents and the Defeasance Security Agreement arising from and after the Release Date, except as expressly set forth in the assignment and assumption agreement.
(d) Following the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders consummation of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.122.7, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect Lender shall promptly return all Reserve Funds to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveBorrower by wire transfer.
Appears in 1 contract
Defeasance. Except as (a) On any date after the expiration of the Lockout Period, provided belowno Event of Default has occurred and is then continuing and subject to the notice requirement described in Section 2.1(d), Borrower may from time to time obtain the release of one or more of the Properties from the Liens of the Loan Documents by Defeasing either the entire Loan, or a portion of the Loan equal to the sum of the Release Prices of the Properties so released, provided that after giving effect thereto, unless the Loan is Defeased in full, the Company will DSCR for the Test Period then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the contemplated release and to exclude the interest expense on the aggregate amount Defeased, shall be deemed no less than the DSCR Threshold; and provided further that all sums then due to have Lender under the Loan Documents are paid and the Company following are delivered to Lender:
(i) Defeasance Collateral sufficient to provide payments on or prior to, and in any event as close as possible to, all successive Payment Dates in an amount sufficient (x) to pay the Guarantor will be discharged from any and all obligations interest due on such Payment Dates in respect of a portion of the Securities Loan equal to the amount Defeased and (y) to repay the outstanding principal balance of any series such portion of the Loan on the first Payment Date in the Prepayment Period;
(ii) written confirmation from an independent certified public accounting firm reasonably satisfactory to Lender that such Defeasance Collateral is sufficient to provide the payments described in clause (i) above;
(iii) a security agreement, in form and substance reasonably satisfactory to Lender, creating in favor of Lender a first priority perfected security interest in such Defeasance Collateral (a “Defeasance Pledge Agreement”);
(iv) an opinion of counsel for Borrower, in form and substance reasonably satisfactory to Lender and delivered by counsel reasonably satisfactory to Lender, opining (1) that the Guarantee thereofDefeasance Pledge Agreement has been duly authorized and is enforceable against Borrower in accordance with its terms and that Lender has a perfected first priority security interest in such Defeasance Collateral; and (2) that the Defeasance does not constitute a “significant modification” of the Loan under Section 1001 of the Code or cause a tax to be imposed on the Securitization Vehicle;
(v) if the Loan has been securitized, and the provisions of this Indenture will no longer be in effect Rating Condition with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions Defeasance shall have been satisfied:; | NY\1631294.13 mle ▇▇ ▇▇▇▇ Loan Agreement||
(avi) instruments reasonably satisfactory to Lender releasing and discharging or assigning to a third party Lender’s Liens on the Collateral so released (other than the Defeasance Collateral);
(vii) such other customary certificates, opinions, documents or instruments as Lender and the Rating Agencies may reasonably request; and
(viii) reimbursement for any costs and expenses incurred by Lender in connection with this Section 2.1 (including, without limitation, Rating Agency and Servicer fees and expenses, reasonable fees and expenses of legal counsel and any revenue, documentary stamp or intangible taxes or any other tax or charge due in connection herewith), provided, however, that Borrower shall only be obligated to pay Servicer fees up to (i) $30,000 if the Loan is Defeased in full (without any prior partial Defeasance), (ii) $10,000 if the Loan is Defeased in part for each partial Defeasance, or (iii) if the Loan is Defeased in full after one or more previous partial Defeasances, the greater of (x) $30,000 in the aggregate for all partial and full Defeasances, or (y) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit sum of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable $10,000 multiplied by the Trustee, total number of partial and full defeasances. Lender shall reasonably cooperate with Borrower to pay avoid the incurrence of mortgage recording taxes in connection with a Defeasance at Borrower’s sole cost and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;expense.
(b) such deposit will If the Loan is not result Defeased in full, Borrower shall execute and deliver all documents necessary to amend and restate the Note with two substitute Notes (which shall be cross-defaulted with each other): one note having a breach or violation of, or constitute principal balance equal to the Defeased portion of the original Note (the “Defeased Note”) and one note having a default under, principal balance equal to the undefeased portion of the original Note (the “Undefeased Note”). The Undefeased Notes may be the subject of a further Defeasance in accordance with the terms of this Indenture or any other material agreement or instrument to which Section 2.1 (the Company or the Guarantorterm “Note”, as used in this Section 2.1, being deemed to refer to the case may be, Undefeased Note that is a party or by which it is bound;the subject of further Defeasance).
(c) no Default Borrower shall cause the Defeased Note to be assumed by a bankruptcy-remote entity established or designated by Borrower in accordance with respect Lender’s reasonable requirements and subject to Lender’s reasonable approval, to which Borrower shall transfer all of the Defeasance Collateral (a “Defeasance Borrower”). Such Defeasance Borrower shall have executed and delivered to Lender an assumption agreement in form and substance reasonably satisfactory to Lender, such Uniform Commercial Code financing statements as may be reasonably requested by Lender and legal opinions of counsel reasonably acceptable to Lender that are substantially equivalent to the Securities of such series opinions delivered to Lender on the Closing Date, including, without limitation, new nonconsolidation opinions reasonably satisfactory to Lender and satisfactory to the Rating Agencies; and Borrower and the Defeasance Borrower shall have occurred delivered such other documents, certificates and be continuing on the date of such deposit;legal opinions as Lender shall reasonably request. | NY\1631294.13 mle ▇▇ ▇▇▇▇ Loan Agreement||
(d) Borrower must give Lender and each Rating Agency at least 30 days’ (and not more than 60 days’) prior written notice of any Defeasance under this Section 2.1, specifying the Company shall have delivered date on which the Defeasance is to the Trustee either occur. If such Defeasance is not made within seven days after such date (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders Borrower’s notice of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and Defeasance will be subject to federal income tax on the same amount deemed rescinded, and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion Borrower shall on such date pay to Lender all reasonable losses, costs and expenses suffered by Lender as a consequence of Counsel to the same effect as the ruling described in clause (x) above; andsuch rescission.
(e) Upon satisfaction of the Company has delivered requirements contained in this Section 2.1, Lender will execute and deliver to Borrower such instruments, prepared by Borrower and approved by Lender, as shall be necessary to release the applicable Property or Properties from the Liens of the Loan Documents or to assign the applicable portion of such Liens and the Defeased portions of the Note to a third party to the Trustee an Officers’ Certificate and an Opinion extent necessary to avoid the incurrence of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivemortgage recording taxes.
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust III, Inc.)
Defeasance. Except as provided below, the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with If, on any Payment Date, there is held by the Trustee as trust funds solely for Defeasance Collateral (which may include the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest balance on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, deposit in the opinion of Liquidity Reserve Account, to the extent it is invested in cash and Defeasance Collateral, if so elected by the Issuer), and in such principal amounts bearing interest at such rates and with such maturities as will provide, according to verification by a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered accountants, sufficient funds to pay (1) all scheduled principal of and interest (if Notes are to be redeemed before the Maturity Date), on the Notes to the TrusteeRedemption Date or the Maturity Date as shall be elected by the Issuer, and (2) without consideration of all Defeasance Expenses (in cash) due to the Noteholders, the Trustee and the Servicer, then upon written notice from the Issuer to the Trustee and to the Noteholders, the Trustee and the Noteholders shall cease to be entitled to any reinvestment and after benefit or security under this Indenture except for the right to receive payment of all federalthe funds so held and other rights which by their nature cannot be satisfied prior to or simultaneously with termination of the lien hereof, state the security interests created by this Indenture (except in such funds and local taxes or other charges investments) shall terminate, and assessments the Issuer and the Trustee shall execute and deliver such instruments as may be necessary to discharge the Trustee's lien and security interests created hereunder for the benefit of the Trustee and the Noteholders. Upon such defeasance, the funds and investments required to pay the Notes and to pay the Defeasance Expenses shall be irrevocably set aside for that purpose, and money held for defeasance shall be invested only as provided above in respect thereof payable this section and applied by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory Trustee to the Trustee)retirement of the Notes and payment of the Defeasance Expenses. Any funds or property held by the Trustee and not required for payment or redemption of Notes and payment of Defeasance Expenses shall be distributed to the order of the Issuer upon such indemnification, if any, as the case Trustee may be;reasonably require. If any Notes are to be defeased to a Redemption Date before the Maturity Date, the Notes to be defeased shall be subject to redemption on such Redemption Date at the Redemption Price, and the Trustee shall be deemed to have been instructed to distribute and shall distribute a notice of redemption of such Notes as and when required hereunder.
(b) such deposit will not result in a breach or violation ofUpon defeasance of all of the Notes Outstanding, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect Issuer shall pay to the Securities Servicer, a fee in the amount of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders 0.25% per annum of the Securities aggregate Note Principal Balance of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveOutstanding Notes.
Appears in 1 contract
Sources: Indenture (Iconix Brand Group, Inc.)
Defeasance. Except as provided belowIf there is paid or caused to be paid from the Bond Fund to the Holders of all of the Bonds secured hereby the principal of, premium, if any, and interest which is and shall thereafter become due and payable thereon, together with all other sums payable hereunder by the Authority, then and in that case the rights, title and interest of the Trustee hereunder shall cease and terminate, and such Bonds shall cease to be entitled to any lien, benefit or security under this Agreement. In such event, the Company will Trustee shall transfer and assign to the Borrower all property then held by the Trustee, shall execute such documents as may be reasonably required by the Authority or the Borrower to evidence such transfer and assignment and shall turn over to the Borrower any surplus in the Bond Fund and any balance remaining in the Construction Fund. If the Authority shall pay or cause to be paid to the Holders of less than all of the outstanding Bonds the principal of, premium, if any, and interest which is and shall thereafter become due and payable upon such Bonds, such Bonds, or portions thereof, shall cease to be entitled to any lien, benefit or security under this Agreement. Any outstanding Bond, or any portion thereof in the principal amount of FIVE THOUSAND DOLLARS ($5,000) or any multiple thereof, shall be deemed to have been paid within the meaning and with the Company and effect expressed in this Section 1301 when the Guarantor will be discharged from any and all obligations in respect whole amount of the Securities of any series and the Guarantee thereofprincipal of, premium, if any, and interest on such 112 118 Bond shall have been paid or when (a) in case said Bonds or portions thereof have been selected for redemption in accordance with Section 301 hereof prior to their maturity, the Borrower shall have given to the Trustee irrevocable instructions to give in accordance with the provisions of this Indenture will no longer be in effect with respect to the Securities Section 302 hereof notice of redemption of such series and the Guarantee thereof Bonds, or portions thereof, (and the Trustee, at the expense of the Company and the Guarantor, b) there shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust be on deposit with the Trustee as trust funds solely for moneys or Defeasance Obligations which shall not contain provisions permitting the benefit redemption thereof other than at the option of the Holders holder, the principal of and the Securities of such seriesinterest on which when due, for payment of and without any reinvestment thereof, will provide moneys which shall be sufficient to pay when due the Principal principal of and interest due and to become due on the Securities of such series, money said Bonds or U.S. Government Obligations portions thereof on or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered prior to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes redemption date or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantordate thereof, as the case may be, is a party or by which it is bound;
(c) no Default with respect in the event said Bonds, or portions thereof, do not mature and are not to be redeemed within the next succeeding sixty (60) days, the Borrower shall have given the Trustee irrevocable instructions to give notice, as soon as practicable in the same manner as a notice of redemption is given pursuant to Section 302 hereof, to the Securities Holders of said Bonds, or portions thereof, stating that the deposit of moneys or Defeasance Obligations required by clause (b) of this paragraph has been made with the Trustee and that said Bonds are deemed to have been paid in accordance with this Section and stating such series shall have occurred maturity or redemption date upon which moneys are to be available for the payment of the principal of and be continuing interest on the date of such deposit;
said Bonds, or portions thereof, (d) the Company 113 119 Trustee shall have delivered received an opinion of counsel experienced in bankruptcy matters, satisfactory to the Trustee either (x) a ruling directed to Trustee, the Trustee received from Guarantor and the Internal Revenue Service Authority, to the effect that the Holders payment to the Bondholders of the Securities moneys described in clause (b) of such series will this paragraph would not recognize income, gain or loss for federal income tax purposes as constitute a result voidable preference under the provisions of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and United States Bankruptcy Code in the same manner event of an Act of Bankruptcy, and at (e) the same times as would Trustee shall have been the case if such deposit and defeasance had not occurred or (y) received an Opinion of Counsel experienced in federal tax matters satisfactory to the same Trustee and the Authority, to the effect as that the ruling deposit of the moneys or Defeasance Obligations described in clause (xb) above; and
of this paragraph would not adversely affect the treatment of the interest received by Bondholders as income from sources within the Commonwealth for purposes of the Code or otherwise would not result in an Event of Taxability (e) assuming continuing compliance by the Company has delivered Borrower with the source of income covenants set forth in the Loan Agreement). Neither the moneys nor the Defeasance Obligations deposited with the Trustee pursuant to this Section nor principal or interest payments on any such obligations shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of and interest on said Bonds, or portions thereof. If the Defeasance Obligations deposited with the Trustee pursuant to this Section are purchased with proceeds of refunding bonds issued by the Authority, such Defeasance Obligations must meet the requirements of the Act. If payment of less than all of the Bonds is to be provided for in the manner and with the effect expressed in this Section, the Trustee 114 120 shall select such Bonds, or portions thereof, in the manner specified in Section 301 hereof for selection for redemption of less than all of the Bonds in the principal amounts designated to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to by the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveBorrower.
Appears in 1 contract
Defeasance. Except as provided belowThe Owner Trustee may, at any time, defease the Company will interest of the Indenture Trustee in the Indenture Estate in whole, but not in part, through the deposit with the Defeasance Trustee, in accordance with the provisions of this Section 10.05, of cash and/or Government Obligations; provided, however, that such defeasance shall not be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations applicable in respect of the Securities Series SWA 1995 Trust N602SW-I Certificates. Such deposit shall be made pursuant to a declaration or other appropriate instrument of any series trust satisfactory in form and substance to the Defeasance Trustee and the Guarantee thereofIndenture Trustee; such deposit shall be absolute and irrevocable and the instrument of trust shall expressly provide that the Owner Trustee shall have no further title to or interest in or power to direct the use or application of the cash and/or Government Obligations so deposited or any of the proceeds arising therefrom; such instrument shall state that the trust created thereby and the cash and/or Government Obligations deposited pursuant thereto are for the sole and exclusive benefit of the Holders and shall expressly provide that the Defeasance Trustee shall apply such cash and payments of principal and/or interest on such Government Obligations to, and only to, the punctual payment of the principal and interest on the Certificates as and when such payments become due (such declaration or instrument to contain appropriate provisions for the recording of this transfers of Certificates and the names and addresses of the Holders); and the Owner Trustee shall agree to pay, as the same shall become due and payable, all fees, costs and charges of the Defeasance Trustee under such instrument of trust, including those which may become payable after the date the conditions hereinbelow specified have been met. Upon compliance with the following conditions, and provided, that no Indenture will no longer Event of Default or Indenture Default shall have occurred and be continuing on a date 91 days after the date of the deposit of Government Obligations and/or cash with the Defeasance Trustee as provided in effect Subsection A below, the Owner Trustee's obligations with respect to the Securities Certificates will be discharged and this Indenture shall terminate as provided in Section 10.01:
A. the Owner Trustee shall have deposited with the Defeasance Trustee absolutely and irrevocably (irrespective of such series whether the conditions in Subsections B, C, D and the Guarantee thereof (and the Trustee, at the expense E of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall this Section 10.05 have been satisfied:)
(a1) cash and/or (2) Government Obligations which through the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by in accordance with their terms, without any reinvestment or further investment of the Trusteeprincipal of or interest earned on such Government Obligations, will absolutely and unconditionally provide in any and all circumstances not later than one day before each Payment Date an amount sufficient to pay and discharge the Principal payment of principal and accrued interest to be due and payable on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bePayment Date;
(b) such deposit will not result in a breach B. no Indenture Event of Default or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such depositthe deposit of cash and/or Government Obligations as contemplated hereby;
(d) C. the Company Owner Trustee shall have delivered to the Defeasance Trustee either (x) a ruling directed and to the Certificate Holders written confirmation by a nationally recognized firm of independent public accountants (other than the accounting firm then serving as Shawmut Bank Connecticut, TRUST INDENTURE AND SECURITY AGREEMENT [N602SW] -48- 55 National Association's or the Owner Participant's regular auditors) selected by the Owner Trustee, the form and substance of which confirmation and the identity of such accounting firm shall be satisfactory to the Indenture Trustee, that the Government Obligations deposited for payment of the Certificates, together with any cash deposited by the Owner Trustee, are sufficient to satisfy the requirements of Subsection A hereof;
D. the Owner Trustee received from shall have delivered to the Defeasance Trustee, the Indenture Trustee and the Certificate Holders an opinion of counsel in form and substance satisfactory to the Indenture Trustee to the effect that (1) the trust declaration or other instrument, as the case may be, is legal, valid, binding and enforceable in accordance with its terms for the sole benefit and use of the Holders, is irrevocable and the Government Obligations and/or cash deposited thereunder and the proceeds thereof and therefrom are held by the Defeasance Trustee thereunder in trust solely for the benefit of the Holders and will not be subject to any valid interest, lien, claim or encumbrance of any other Person, including the Owner Trustee or the Owner Participant or any Person claiming by, through, under or in the name or on behalf of the Owner Trustee or the Owner Participant or any creditor or beneficiary of the Owner Trustee or the Owner Participant, or by any court or trustee in bankruptcy and (2) such deposit will not constitute a preferential transfer or a fraudulent conveyance under any bankruptcy or other similar law and shall cover such other matters as the Indenture Trustee may reasonably require in connection with such final deposit and matters relating thereto;
E. the Owner Trustee shall have delivered to the Defeasance Trustee, the Indenture Trustee and the Certificate Holders an Officers' Certificate and an Opinion of Counsel (1) to the effect that there has been published by the Internal Revenue Service a ruling, or (2) since the date of this Agreement that there has been a change in or clarification of the applicable Federal income tax law, in either case to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal Federal income tax purposes as a result of such discharge the exercise by the Owner Trustee of its option under this Section 9.02 10.01(a)(iii) and will be subject to federal Federal income tax on the same amount amounts and in the same manner and at the same times times, as would have been the case if such deposit and defeasance option had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) abovebeen exercised; and
F. the Owner Trustee shall have (e1) taken such further action and executed such further documents as may be reasonably required by any Holder, the Company has Indenture Trustee or the Defeasance Trustee and (2) delivered to the Defeasance Trustee, the Indenture Trustee an Officers’ Certificate and an Opinion to the Holders a certificate of Counsel, in each case a Responsible Officer of the Owner Trustee stating that all conditions precedent provided for herein relating to the defeasance of the Certificates contemplated by this Section 9.02 10.05 have been satisfied. The Owner Participant will pay all expenses (including, without limitation, reasonable legal fees) incident to the implementation of the Securities transactions contemplated by this Section 10.05. For the purpose of such series this Article 10, the following terms have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.following definitions:
Appears in 1 contract
Sources: Trust Indenture and Security Agreement (Southwest Airlines Co)
Defeasance. Except as provided below18.2.1 The Issuer may, the Company will be deemed at its option and at any time, elect to have paid and the Company and the Guarantor will be certain obligations discharged from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect (see Clause 18.2.2) upon complying with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:(“Covenant Defeasance”);
(a) the Company or Issuer shall have irrevocably pledged to the Guarantor has irrevocably deposited in trust with the Bond Trustee as trust funds solely for the benefit of the Holders of Bondholders cash or government obligations acceptable by the Securities of Bond Trustee (the “Defeasance Pledge”) in such series, amounts as will be sufficient for the payment of the Principal of principal and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered Outstanding Bonds to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may beMaturity Date;
(b) such deposit will not result in the Issuer shall, if required by the Bond Trustee, provide a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect legal opinion reasonable acceptable to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Bond Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series Bondholders will not recognize income, gain or loss for federal income tax purposes (under US federal or Norwegian tax law, if applicable) as a result of such discharge under this Section 9.02 the Defeasance Pledge and Covenant Defeasance, and will be subject to federal such income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance the Defeasance Pledge had not occurred;
(c) no Event of Default shall have occurred and be continuing on the date of establishment of the Defeasance Pledge, or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 181st day after the date of establishment of the Defeasance Pledge;
(yd) an Opinion neither the Defeasance Pledge nor the Covenant Defeasance results in a breach or violation of Counsel to any material agreement or instrument binding upon the same effect as Issuer, or the ruling described in clause (x) above; andcertificate of association or partnership agreement governing the Issuer;
(e) the Company has Issuer shall have delivered to the Bond Trustee an Officers’ Certificate a certificate signed by the Chief Executive Officer of the GP that the Defeasance Pledge was not made by the Issuer with the intent of preferring the Bondholders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(f) the Issuer shall have delivered to the Bond Trustee any certificate or legal opinion reasonably required regarding the Covenant Defeasance or Defeasance Pledge (including certificate from the Chief Executive Officer of the GP and an Opinion of Counsel, in each case stating a legal opinion from its legal counsel to the effect that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series Covenant Defeasance have been complied with. The obligations ; and that (i) the Defeasance Pledge will not be subject to any rights of creditors of the Company Issuer, (ii) the Defeasance Pledge will constitute a valid, perfected and enforceable security interest in favour of the Bond Trustee for the benefit of the Bondholders, and (iii) after the 181st day following the establishment of the Defeasance Pledge, the funds and assets so pledged will not be subject to the effects of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally under the laws of the jurisdiction where the Defeasance Pledge was established and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations corporate domicile of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveIssuer.
Appears in 1 contract
Defeasance. Except as provided belowOn any Business Day falling prior to the Series 1999-1 Termination Date (but with not less than ten (10) Business Days' prior written notice from the Servicer to the Trustee and the Insurer), the Company will Servicer may, upon instruction from Transferor, cause the undivided interest in the Trust represented by the Series 1999-1 Certificates to be deemed conveyed to one or more Persons (who may be the holders of a new Series issued substantially contemporaneously with such prepayment, which new Series may have paid and a greater undivided interest in the Company and the Guarantor will be discharged from any and all obligations Trust than Series 1999-1) for a cash purchase price in respect of the Securities of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect an amount equal to the Securities sum of such series and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such seriesInvested Amount, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
plus (b) to the extent not available from the Interest Funding Account, interest accrued and to accrue on the Series 1999-1 Certificates and other Facilities Costs through the date of final payment of each Class as specified below (after giving effect to any derivative instrument referred to below), plus (c) all unpaid Reimbursement Amounts. Any such conveyance shall be effective upon the date that the purchase price is deposited into the Principal Account as described below, and following such deposit the Series 1999-1 Certificates shall have no further interest in the Receivables. No such conveyance shall, however, be permitted if as a result thereof Transferor or any of its Affiliates would increase its undivided interest in the Receivables, and the Trustee shall be entitled to receive and rely on an Officer's Certificate to the effect that no such increase will result therefrom, nor shall such conveyance be permitted unless each Rating Agency confirms that it will not result in a breach downgrade or violation of, or constitute a default under, this Indenture or withdrawal of such Rating Agency's rating of any other material agreement or instrument to which Class of Certificates. The purchase price shall be directly deposited in the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect Principal Account for distribution to the Securities of such series shall have occurred and be continuing Holders on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize incomenext upcoming Distribution Date or, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicablelater, with respect to each Class of Certificates, on its respective expected final payment date. In connection with any such conveyance, the Securities Transferor shall transfer to the Trustee, for the Benefit of the holder of the Series 1999-1 Certificates and the Insurer one or more interest rate derivative instruments that, when combined with investment earnings on the cash purchase price deposited pursuant to this Section 4.19 will provide sufficient funds to assure timely payment of interest on the Certificates and other Facilities Costs and any Insurance Premium and unpaid Reimbursement Amounts until paid in full, and the Servicer shall cause such investment earnings and the proceeds of such series derivatives to be applied to make interest payments and pay other Facilities Costs on the Guarantee thereof shall survive until Certificates and any Insurance Premium, in accordance with the priorities in Section 4.8(a), on each Distribution Date. The Policy will terminate upon any such Securities are no longer outstandingdefeasance.
SECTION 7. Thereafter, only the obligations Article V of the Company Agreement. Article V of the Agreement shall read in its entirety as follows and shall be applicable only to the Guarantor in Sections 8.07 and 9.05, as applicable, shall survive.Series 1999-1 Certificates:
Appears in 1 contract
Defeasance. Except Any provision hereof to the contrary notwithstanding, ---------- at any time during the Defeasance Period (as provided defined below), the Company will be deemed to have paid and the Company and the Guarantor will be discharged from any and all obligations in respect Borrower may obtain a release of the Securities of any series and Mortgaged Property from the Guarantee thereof, and the provisions of this Indenture will no longer be in effect with respect to the Securities of such series and the Guarantee thereof (and the Trustee, at the expense lien of the Company and Security Instrument only upon the Guarantor, shall execute proper instruments acknowledging the same); provided that satisfaction of the following conditions shall have been satisfiedconditions:
(ai) not less than thirty (30) days prior written notice shall be given to Lender specifying a date (the Company or "Defeasance Date") on --------------- which the Guarantor has irrevocably deposited in trust with Defeasance Collateral (as defined below) is to be delivered, such date being the Trustee as trust funds solely for the benefit first day of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may bemonth;
(bii) all accrued and unpaid interest and all other sums due under this Note, the Security Instrument and the Other Security Documents up to the Defeasance Date, including, without limitation, all reasonable costs and expenses incurred by Lender or its agents in connection with such deposit will not result defeasance, including, without limitation, any legal fees and expenses incurred in connection with obtaining and reviewing the Defeasance Collateral, the preparation of the Defeasance Security Agreement (as defined below) and related documentation, accountant fees, and investment advisor fees, all of which shall be paid in full on or prior to the Defeasance Date;
(iii) no Event of Default, and no event or condition that, with the giving of notice or passage of time or both, would constitute an Event of Default, shall exist either at the time Borrower gives notice of the Defeasance Date to Lender or on the Defeasance Date;
(iv) Borrower shall deliver to Lender on or before the Defeasance Date direct, non-callable obligations of the United States of America in such form and amount that provide for the payments prior, but as close as possible, to all successive regularly scheduled monthly payment dates, including the Maturity Date, with such payments being equal to or greater than the amount of the corresponding monthly payment required to be paid under this Note (hereafter, "Scheduled --------- Defeasance Payments") for the balance of the term hereof and the ------------------- amount required to be paid on the Maturity Date (such obligations are collectively and singularly referred to herein as "Defeasance ---------- Collateral") each of which shall be duly endorsed by the holder ---------- thereof as directed by Lender or accompanied by a breach or violation ofwritten instrument of tra▇▇▇▇▇ in form and substance wholly satisfactory to Lender (including, or constitute a default underwithout limitation, this Indenture or any other material agreement or such instrument to which as may be required by the Company depository institution holding such securities or the Guarantorissuer thereof, as the case may be, is to effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect a party first priority security interest in such Defeasance Collateral in favor of Lender. The Defeasance Collateral may be purchased by Lender on Borrower's behalf, in which case Borrower shall deposit with Lender at least three days before the Defeasance Date a sum sufficient, in Lender's sole and absolute discretion, to purchase t▇▇ ▇▇▇easance Collateral. Any sums in excess of the amount necessary to purchase the Defeasance Collateral shall be remitted to Borrower upon release of the Mortgaged Property.
(v) Borrower shall deliver the following to Lender, at Borrower's cost, on or by which it is boundprior to the Defeasance Date:
(A) a pledge and security agreement, in form and substance satisfactory to Lender in its sole discretion, creating a first priority security interest in favor of Lender in the Defeasance Collateral (the "Defeasance Security Agreement"); -----------------------------
(B) a certificate of Borrower certifying that all of the requirements hereunder for a defeasance have been satisfied;
(cD) no Default with respect an opinion of an independent certified public accountant acceptable to Lender representing and warranting to Lender that the Securities of such series shall have occurred and Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments including the amount required to be continuing paid on the date Maturity Date of this Note, and such depositother approvals required by Lender;
(dE) evidence in writing from each of the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service Rating Agencies to the effect that the Holders of the Securities of such series release will not recognize incomeresult in a qualifi- cation, gain downgrade or loss withdrawal of any rating in effect immediately prior to the Defeasance Date for federal income tax purposes as any securities or "Pass-Through Certificates" issued pursuant to the terms of a result of such discharge under this Section 9.02 trust and will be subject to federal income tax on the same amount and servicing agreement in the same manner and at the same times event that this Note or any interest therein is included in a REMIC or other securitization vehicle;
(F) such other certificates, opinions, documents or instruments as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveLender may reasonably require; and
(eG) upon approval by Lender of the Company has schedule of Defeasance Collateral to be delivered to the Trustee an Officers’ Certificate and an Opinion of CounselLender, Borrower shall (i) pay Lender a nonrefundable fee, in each case stating that an amount reasonably determined by Lender, as compensation for the review, analysis and processing of the defeasance request; and (ii) if required by Lender, deposit with Lender an amount estimated by Lender to be sufficient to fund all conditions precedent provided other fees, costs and expenses related to the defeasance, including Lender's reasonable attorneys' fees and expenses and rating agency fees, if any and expenses together with all expenses and costs associated with the release of the lien on the Mortgaged Property. Borrower shall be responsible for herein all fees, costs and expenses associated with the defeasance which, if not covered by the above deposit, shall be paid to Lender no later than the Defeasance Date. Upon compliance with the foregoing requirements relating to the defeasance contemplated by this Section 9.02 delivery of the Securities of such series have been complied with. The obligations Defeasance Collateral, the Mortgaged Property shall be released from the lien of the Company Security Instrument and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series Defeasance Collateral shall constitute collateral which shall secure this Note and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall surviveDebt.
Appears in 1 contract
Defeasance. Except (a) On any date after the expiration of the Lockout Period, provided no Event of Default is then continuing and subject to the notice requirement described in Section 2.1(c), Borrower may obtain the release of the Collateral (other than the Defeasance Collateral) from the Liens created by the Loan Documents upon the payment to Lender of all sums then due under the Loan Documents and the delivery of the following to Lender:
(i) Defeasance Collateral sufficient to provide payments on or prior to, and in any event as provided close as possible to, all successive Payment Dates in an amount sufficient to make all payments of interest and principal due hereunder (including the then outstanding Principal Indebtedness on the Maturity Date), taking into account any income tax payable on any net annual income of Borrower or the Defeasance Borrower, as applicable;
(ii) written confirmation from an independent certified public accounting firm reasonably satisfactory to Lender that such Defeasance Collateral is sufficient to provide the payments described in clause (i) above;
(iii) a security agreement, in form and substance reasonably satisfactory to Lender, creating in favor of Lender a first priority perfected security interest in such Defeasance Collateral (a "Defeasance Pledge Agreement");
(iv) an opinion of counsel for Borrower, in form and substance reasonably satisfactory to Lender and delivered by counsel reasonably satisfactory to Lender, opining (1) that the Defeasance Pledge Agreement has been duly authorized and is enforceable against Borrower in accordance with its terms and that Lender has a perfected first priority security interest in such Defeasance Collateral; (2) that the Defeasance does not constitute a "significant modification" of the Loan under Section 1001 of the Code or cause a tax to be imposed on the Securitization Vehicle; and (3) that the defeasance does not cause the Securitization Vehicle to be an "investment company" required to be registered under the Investment Company Act of 1940;
(v) if the Loan has been securitized, Rating Confirmation with respect to such Defeasance;
(vi) instruments reasonably satisfactory to Lender releasing and discharging or assigning to a third party Lender's Liens on the Collateral (other than the Defeasance Collateral and other instruments described in Section 2.1(d) below, if applicable);
(vii) such other customary certificates, opinions, documents or instruments as Lender and the Company Rating Agencies may reasonably request; and
(viii) reimbursement for any reasonable costs and expenses incurred by Lender in connection with this Section 2.1 (including customary Rating Agency and Servicer fees and expenses, reasonable fees and expenses of legal counsel and any revenue, documentary stamp or intangible taxes or any other tax or charge due in connection herewith). Lender shall reasonably cooperate with Borrower in connection with a Defeasance to avoid the loss of mortgage recording taxes previously paid by Borrower (or its predecessors in interest), including taking the steps set forth in Section 2.1(d) below at the request of Borrower.
(b) At the time of Defeasance, Borrower shall transfer and assign all of its interest in the Property to a third party which may be an affiliate of Borrower, unless (i) the Loan is assumed by a bankruptcy-remote entity satisfactory to Lender and the Rating Agencies to which Borrower shall transfer all of the Defeasance Collateral or the steps set forth in Section 2.1(d), or other steps required by the last sentence of Section 2.1(a) have been taken (a "Defeasance Borrower"), (ii) such Defeasance Borrower shall have executed and delivered to Lender an assumption agreement in form and substance reasonably satisfactory to Lender, such Uniform Commercial Code financing statements as may be reasonably requested by Lender and legal opinions of counsel reasonably acceptable to Lender which are substantially equivalent to the opinions delivered to Lender on the Closing Date, including new nonconsolidation opinions reasonably satisfactory to Lender and satisfactory to the Rating Agencies, and (iii) Borrower and the Defeasance Borrower shall have delivered such other documents, certificates and legal opinions as Lender shall reasonably request, in which event Borrower shall be completely released and relieved of all of its obligations under the Loan Documents except those obligations which by their terms survive the repayment of the Loan.
(c) Borrower must give Lender and each Rating Agency at least 30 days' (and not more than 60 days') prior written notice of any Defeasance under this Section 2.1, specifying the date on which the Defeasance is to occur. If such Defeasance is not made on such date (x) Borrower's notice of Defeasance will be deemed rescinded, and (y) Borrower shall on such date pay to Lender all reasonable losses, costs and expenses suffered by Lender as a consequence of such rescission.
(d) In connection with a total Defeasance of the Loan in compliance with and subject to Section 2.1(a) of this Agreement and upon the written request of Borrower, Lender shall assign and sell the Note and Mortgage to any Person designated by the Borrower as the purchaser of the Note and Mortgage (the "Designated Purchaser") according either (A) to the procedures set forth in the Advisory Opinion from the Commissioner of Taxation and Finance of the State of New York, dated February 25, 2000, in response to Petition No. M991230A or (B) the following procedures:
(i) The notice required under Section 2.1(c) of this Agreement shall request that the Note and Mortgage be sold and assigned to the Designated Purchaser in exchange for the New Note;
(ii) Borrower shall procure a loan from another lender and execute a new note to such lender evidencing such indebtedness (the "New Note"). The New Note shall have paid a principal balance equal to the outstanding principal balance of the Note, shall be issued and dated as of the date of the Defeasance and shall otherwise have identical terms as the Note, including the Maturity Date, except that the New Note shall be secured by the Defeasance Collateral;
(iii) In lieu of a termination, cancellation and release of the Mortgage and the Company other Loan Documents, Borrower shall deliver to Lender an allonge to the Note and the Guarantor will an assignment of Mortgage (for execution by Lender), each instrument to be discharged from made without any and all obligations in respect of the Securities recourse or liability of any series and the Guarantee thereof, and the provisions of this Indenture will no longer be in effect nature with respect to the Securities of such series Lender and the Guarantee thereof (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered otherwise acceptable to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee either (x) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) aboveLender; and
(iv) Upon complete satisfaction of the requirements set forth in Section 2.1(a) of this Agreement, Lender shall sell and assign the Note and Mortgage to the Designated Purchaser in exchange for the New Note (endorsed over to Lender) and the Defeasance Collateral.
(e) Upon satisfaction of the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, requirements contained in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 2.1, Lender will execute and deliver to Borrower such instruments, prepared by Borrower and reasonably approved by Lender, as shall be necessary to release the Property from the Liens of the Securities Loan Documents or necessary to comply with the provisions set forth in Section 2.1(d) of such series have been complied with. The obligations of the Company and the Guarantor in Sections 2.02 through 2.12, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series and the Guarantee thereof shall survive until such Securities are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivethis Agreement.
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Defeasance. Except as provided below(a) At any time prior to the Payment Date that occurs prior to the Prepayment Period of any outstanding Series (such Payment Date, the Company will be deemed to have paid and “Defeasance Payment Date”), the Company and Issuer may obtain the Guarantor will be discharged release from any and all obligations in respect of the Securities of any series and the Guarantee thereof, and the provisions covenants of this Indenture will no longer be in effect relating to ownership and operation of the Cellular Sites by delivering United States government securities that provide for payments which replicate the required payments and scheduled amortization payments due under the Transaction Documents with respect to all of the Securities of such series Notes then outstanding, including without limitation, the Indenture Trustee Fee and any other amounts due and owing to the Guarantee thereof (and the Indenture Trustee, at if any, Workout Fees, Servicing Fees, Other Servicing Fees and any other amounts due and owing to the expense Servicer, if any, through the Defeasance Payment Date for each Series of Notes (including payment in full of the Company and principal of the Guarantor, shall execute proper instruments acknowledging Notes on the samerelated Defeasance Payment Date); provided provided, that the following conditions shall have been satisfied:
(ai) no Event of Default has occurred and is continuing and (ii) the Company Issuer shall pay or the Guarantor has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have occurred and be continuing deliver on the date of such deposit;defeasance (the “Defeasance Date”)
(da) all interest accrued and unpaid on the Company shall Outstanding Class Principal Balance of each Class of Notes to but not including the Defeasance Date (and, if the Defeasance Date is not a Payment Date, the interest that would have delivered accrued to but not including the next Payment Date), (b) all other sums then due under each Class of Notes and all other Transaction Documents executed in connection therewith, including any costs incurred in connection with such defeasance, and (c) U.S. government securities providing for payments equal to the Scheduled Defeasance Payments. In addition, the Issuer shall deliver to the Servicer on behalf of the Indenture Trustee either (x1) a ruling directed to security agreement granting the Indenture Trustee received from the Internal Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax first priority perfected security interest on the same amount and in U.S. government securities so delivered by the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or Issuer, (y2) an Opinion of Counsel as to the same effect as enforceability and perfection of such security interest, (3) a confirmation by an Independent certified public accounting firm that the ruling described in clause U.S. government securities so delivered are sufficient to pay all interest due from time to time after the Defeasance Date (xor if the Defeasance Date is not a Payment Date, due after the next Payment Date) above; and
(e) the Company has delivered and all principal due upon maturity for each Class of Notes, and all Indenture Trustee Fee and any other amounts due and owing to the Trustee an Officers’ Certificate Indenture Trustee, if any, Workout Fees, Servicing Fees, Other Servicing Fees and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating any other amounts due and owing to the defeasance contemplated by this Section 9.02 of the Securities of such series have been complied withServicer, if any and (4) a Rating Agency Confirmation. The Issuer, pursuant to the security agreement described above, shall authorize and direct that the payments received from the U.S. government securities shall be made directly to the Indenture Trustee and applied to satisfy the obligations of the Company Issuer under the Notes and the Guarantor other Transaction Documents.
(b) If the Asset Entities will continue to own any material assets other than the U.S. government securities delivered in Sections 2.02 through 2.12connection with the defeasance, 4.02, 8.07, 8.08, 9.04 and 9.05, as applicablethe Issuer shall establish or designate a special-purpose bankruptcy-remote successor entity acceptable to the Indenture Trustee, with respect to which a substantive non-consolidation Opinion of Counsel reasonably satisfactory to the Securities of such series Indenture Trustee has been delivered to the Indenture Trustee and to transfer to that entity the Guarantee thereof pledged U.S. government securities. The new entity shall survive until such Securities are no longer outstanding. Thereafter, only assume the obligations of the Company Issuer under the Notes being defeased and the security agreement and the Obligors and the Guarantor shall be relieved of their obligations in Sections 8.07 and 9.05, respect thereof under the Transaction Documents. The Issuer shall pay Ten Dollars ($10) to such new entity as applicable, shall surviveconsideration for assuming such obligations.
Appears in 1 contract
Sources: Indenture (American Tower Corp /Ma/)
Defeasance. Except (a) When the principal or redemption price (as provided belowthe case may be) of, and interest on all Bonds issued hereunder have been paid, or provision has been made for payment of the same, together with the compensation of the Trustee and all other sums payable hereunder by the Issuer, the Company will right, title and interest of the Trustee in and to the Trust Estate shall thereupon cease, and the Trustee, on written demand of the Issuer, shall release this Indenture and shall execute such documents to evidence such release as may be reasonably required by the Issuer and shall turn over to the Borrower or to such person, body or authority as may entitled to receive the same all balances then held by it hereunder; provided, that if any payments have been received by the Trustee from draws on the Credit Facility in connection with such release, such balances shall be paid to the Credit Facility Issuer to the extent of such payments. If payment or provision therefor is made with respect to less than all of the Bonds, the particular Bonds (or portion thereof) for which provision for payment shall have been considered made shall be selected by lot by the Trustee and thereupon the Trustee shall take similar action for the release of this Indenture with respect to such Bonds.
(b) Provision for the payment of Bonds shall be deemed to have paid been made when the Trustee holds in the Bond Fund, in trust and irrevocably sets aside exclusively for such payment, (i) moneys sufficient to make such payment provided that if a Credit Facility is then held by the Company Trustee, such moneys shall constitute Available Moneys or (ii) noncallable Government Obligations maturing as to principal and interest in such amounts and at such times as will provide sufficient moneys without reinvestment to make such payment; provided that (i) such provision for payment may only be made after the Guarantor Conversion Date and (ii) the Trustee shall have received an opinion of Bond Counsel to the effect that such deposit will not adversely affect the tax-exempt status of the interest on any of the Bonds (E.G. by causing any of the Bonds to be discharged from any classified as "arbitrage bonds" within the meaning of Section 148 of the Code), and all obligations provided further, that if a Credit Facility is then held by the Trustee, such Government Obligations shall have been on deposit with the Trustee in a separate and segregated account for a period of 366 days during and prior to which no Event of Bankruptcy has occurred or which Government Obligations were purchased with Available Moneys. No Bonds in respect of which a deposit under clause (b) above has been made shall be deemed paid within the Securities meaning of this Article unless the Trustee is satisfied that the amounts deposited are sufficient to make all payments that might become due on the Bonds. Notwithstanding the foregoing, no delivery to the Trustee under this SUBSECTION (b) shall be deemed a payment of any series and the Guarantee thereof, and Bonds which are to be redeemed prior to their stated maturity until such Bonds shall have been irrevocably called or designated for redemption on a date thereafter on which such Bonds may be redeemed in accordance with the provisions of this Indenture will no longer be in effect with respect to or the Securities of such series and the Guarantee thereof (and Issuer shall have given the Trustee, at in form satisfactory to the expense Trustee, irrevocable instructions to give notice of redemption. Neither the Company and the Guarantor, shall execute proper instruments acknowledging the same); provided that the following conditions shall have been satisfied:
(a) the Company or the Guarantor has irrevocably obligations nor moneys deposited in trust with the Trustee as pursuant to this Section shall be withdrawn or used for any purpose other than, and shall be segregated and held in trust funds solely for for, the benefit of the Holders of the Securities of such series, for payment of the Principal of principal of, redemption price of, and interest on the Securities of Bonds with respect to which such series, money deposit has been made. In the event that such moneys or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered obligations are to be applied to the Trustee) without consideration payment of principal or redemption price of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect Bonds more than 60 days following the deposit thereof payable by with the Trustee, the Trustee shall mail a notice stating that such moneys or obligations have been deposited and identifying the Bonds for the payment of which such moneys or obligations are being held to pay and discharge the Principal all Registered Owners of and accrued interest such Bonds at their addresses shown on the outstanding Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor, as the case may be, is a party or by which it is bound;Bond Register.
(c) no Default with respect Anything in ARTICLE XIII to the Securities contrary notwithstanding, if moneys or Government Obligations have been deposited or set aside with the Trustee pursuant to this Article for the payment of the principal or redemption price, of the Bonds and the interest thereon and the principal or redemption price, of such series Bonds and the interest thereon shall not have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered in fact been actually paid in full, no amendment to the Trustee either (x) a ruling directed to provisions of this Article shall be made without the Trustee received from the Internal Revenue Service to the effect that the Holders consent of the Securities Registered Owner of such series will not recognize incomeeach of the Bonds affected thereby. Notwithstanding the foregoing, gain or loss for federal income tax purposes as a result of such discharge under this Section 9.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above; and
(e) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein those provisions relating to the defeasance contemplated by this Section 9.02 maturity of Bonds, interest payments and dates thereof, and the dates, premiums and notice requirements for optional and mandatory redemption and the Trustee's remedies with respect thereto, and provisions relating to exchange, transfer and registration of Bonds, replacement of mutilated, destroyed, lost or stolen Bonds, the safekeeping and cancellation of Bonds, nonpresentment of Bonds, the holding of moneys in trust and repayments to the Borrower or the Credit Facility Issuer from the Bond Fund and the duties of the Securities of such series have been complied with. The obligations Trustee in connection with all of the Company foregoing and the Guarantor fees, expenses and indemnities of the Trustee, shall remain in Sections 2.02 through 2.12effect and shall be binding upon the Trustee, 4.02the Issuer, 8.07, 8.08, 9.04 and 9.05, as applicable, with respect to the Securities of such series Borrower and the Guarantee thereof shall survive until such Securities are no longer outstanding. ThereafterRegistered Owners, only notwithstanding the obligations release and discharge of the Company and the Guarantor in Sections 8.07 and 9.05, as applicable, shall survivelien of this Indenture.
Appears in 1 contract
Sources: Loan Agreement (Genlyte Group Inc)