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These excerpts taken from the AYR 8-K filed Jun 12, 2007. DISCHARGE OF INDENTURE; DEFEASANCE Section 12.01 Discharge of Liability on the Securities; Defeasance. (a) When (i) the Issuer delivers to the Trustee all Outstanding Securities (other than Securities replaced pursuant to Section 2.08 hereof) for cancellation or (ii) all Outstanding Securities have become due and payable, whether at maturity or as a result of the mailing of a notice of redemption pursuant to Section 3.10(c) hereof and the Issuer irrevocably deposits in the Defeasance/Redemption Account funds sufficient to pay at maturity or upon redemption all Outstanding Securities, including without limitation interest thereon to maturity or the Redemption Date (other than Securities replaced pursuant to Section 2.08 hereof and any Required Expense Amount), and if in either case the Issuer pays all other sums payable hereunder by the Issuer (including any Hedge Breakage Costs resulting from the discharge of this Indenture), then this Indenture shall, subject to Section 12.01(c) hereof, cease to be of further effect. The Trustee shall acknowledge satisfaction and discharge of this Indenture on demand of the Issuer accompanied by an Officers’
Certificate and an Opinion of Counsel, at the cost and expense of the Issuer, to the effect that any conditions precedent to a discharge of this Indenture have been met. (b) Subject to Sections 12.01(c) and 12.02 hereof, the Issuer at any time may terminate (i) all its obligations under the Securities and this Indenture (“Legal Defeasance” option) or (ii) its obligations under Sections 4.01 (other than with respect to a failure to comply with Sections 4.01(a), 4.01(b), 4.01(e) (only with respect to the Issuer) and 4.01(f) (only with respect to the Issuer)), 5.02 and 5.03 hereof (“Covenant Defeasance” option). The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Issuer exercises its Legal Defeasance option, payment of any Securities subject to such Legal Defeasance may not be accelerated because of an Event of Default. If the Issuer exercises its Covenant Defeasance option, payment of the Securities may not be accelerated because of an Event of Default (other than with respect to a failure to comply with Sections 4.01(a), 4.01(b), 4.01(e) (other than with respect to the Issuer), 4.01(f) (other than with respect to the Issuer)) and 5.02(n) hereof. Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates. (c) Notwithstanding clauses (a) and (b) above, the Issuer’s obligations in Sections 2.01, 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 2.09, 5.02(n), Article VI, Sections 8.01, 12.04, 12.05 and 12.06 hereof shall survive until all the Securities have been paid in full. Thereafter, the Issuer’s obligations in Sections 8.01, 12.04 and 12.05 hereof shall survive. Section 12.02 Conditions to Defeasance. The Issuer may exercise its Legal Defeasance option or its Covenant Defeasance option only if: (a) the Issuer irrevocably deposits in trust in the Defeasance/Redemption Account any one or any combination of (i) money, (ii) obligations of, and supported by the full faith and credit of, the U.S. Government (“U.S. Government Obligations”) or (iii) obligations of corporate issuers (“Corporate Obligations”) (provided that any such Corporate Obligations are rated AA+ or higher by Standard & Poor’s and Aa2 or higher by Moody’s at such time and shall not have a maturity of longer than three years from the date of defeasance) for the payment of all principal or Redemption Price, and interest (A) on the Securities or any class or subclass of Securities being defeased, in the case of Legal Defeasance, or (B) on all of the Securities in the case of Covenant Defeasance, in either case, to maturity or redemption, as the case may be; (b) the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations or the Corporate Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and interest when due (i) on each class or subclass of Securities being defeased, in the case of Legal Defeasance, or (ii) on all
of the Securities in the case of Covenant Defeasance, in either case, to maturity or redemption, as the case may be; (c) 91 days pass after the deposit described in clause (a) above is made and during the 91-day period no Event of Default specified in Section 4.01(e) or (f) hereof with respect to the Issuer occurs which is continuing at the end of the period; (d) the deposit described in clause (a) above does not constitute a default under any other agreement binding on the Issuer; (e) the Issuer delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit described in clause (a) does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended; (f) in the case of the Legal Defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (ii) since the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (g) in the case of the Covenant Defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (h) if the related Securities are then listed on any securities exchange, the Issuer delivers to the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Securities to be delisted; (i) a Rating Agency Confirmation and the prior written consent of each of the Policy Provider and the Initial Credit Facility Provider is obtained relating to the defeasance contemplated by this Section 12.02; (j) in the case of a Legal Defeasance only, the Policy shall be terminated and surrendered to the Policy Provider for cancellation; (k) all amounts due and owing to the Policy Provider and the Initial Credit Facility Provider have been paid (or provided for under Section 12.02(a)); and (l) the Issuer delivers to the Trustee an Opinion of Counsel and an Officer’s Certificate that all conditions precedent to such defeasance has been satisfied. Section 12.03 Application of Trust Money. The Trustee shall hold in trust in the Defeasance/Redemption Account money, U.S. Government Obligations or Corporate
Obligations deposited with it pursuant to this Article XII. It shall apply the deposited money and the money from U.S. Government Obligations or Corporate Obligations in accordance with this Indenture to the payment of principal, premium, if any, and interest on the class or subclass of Securities. Money and securities so held in trust are not subject to Article X hereof or to Article VII of the Security Trust Agreement. Section 12.04 Repayment to Issuer. The Trustee shall promptly turn over to the Issuer upon written request any excess money or securities held by it at any time after application of the appropriate defeasance option. Subject to any applicable abandoned property law, the Trustee shall pay to the Issuer upon written request any money held by it for the payment of principal or interest that remains unclaimed for two years and, thereafter, Holders entitled to the money must look to the Issuer for payment as general creditors. Section 12.05 Indemnity for Government Obligations and Corporate Obligations. The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or Corporate Obligations, or the principal and interest received on such U.S. Government Obligations or Corporate Obligations, which has been remitted by the Trustee to the U.S. government or any taxing authority. Section 12.06 Reinstatement. If the Trustee is unable to apply any money or U.S. Government Obligations or Corporate Obligations in accordance with this Article XII by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article XII until such time as the Trustee is permitted to apply all such money, U.S. Government Obligations or Corporate Obligations in accordance with this Article XII; provided, however, that, if the Issuer has made any payment of interest on or principal of any Securities because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money, U.S. Government Obligations or Corporate Obligations held by the Trustee. DISCHARGE OF INDENTURE; DEFEASANCE Section 12.01 Discharge of Liability on the Securities; Defeasance. (a) When (i) the Issuer delivers to the Trustee all Outstanding Securities (other than Securities replaced pursuant to Section 2.08 hereof) for cancellation or (ii) all Outstanding Securities have become due and payable, whether at maturity or as a result of the mailing of a notice of redemption pursuant to Section 3.10(c) hereof and the Issuer irrevocably deposits in the Defeasance/Redemption Account funds sufficient to pay at maturity or upon redemption all Outstanding Securities, including without limitation interest thereon to maturity or the Redemption Date (other than Securities replaced pursuant to Section 2.08 hereof and any Required Expense Amount), and if in either case the Issuer pays all other sums payable hereunder by the Issuer (including any Hedge Breakage Costs resulting from the discharge of this Indenture), then this Indenture shall, subject to Section 12.01(c) hereof, cease to be of further effect. The Trustee shall acknowledge satisfaction and discharge of this Indenture on demand of the Issuer accompanied by an Officers’
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Certificate and an Opinion of Counsel, at the cost and expense of the Issuer, to the effect that any conditions precedent to a discharge of this Indenture have been met. (b) Subject to Sections 12.01(c) and 12.02 hereof, the Issuer at any time may terminate (i) all its obligations under the Securities and this Indenture (“Legal Defeasance” option) or (ii) its obligations under Sections 4.01 (other than with respect to a failure to comply with Sections 4.01(a), 4.01(b), 4.01(e) (only with respect to the Issuer) and 4.01(f) (only with respect to the Issuer)), 5.02 and 5.03 hereof (“Covenant Defeasance” option). The Issuer may exercise its Legal Defeasance option notwithstanding its prior exercise of its Covenant Defeasance option. If the Issuer exercises its Legal Defeasance option, payment of any Securities subject to such Legal Defeasance may not be accelerated because of an Event of Default. If the Issuer exercises its Covenant Defeasance option, payment of the Securities may not be accelerated because of an Event of Default (other than with respect to a failure to comply with Sections 4.01(a), 4.01(b), 4.01(e) (other than with respect to the Issuer), 4.01(f) (other than with respect to the Issuer)) and 5.02(n) hereof. Upon satisfaction of the conditions set forth herein and upon request of the Issuer, the Trustee shall acknowledge in writing the discharge of those obligations that the Issuer terminates. (c) Notwithstanding clauses (a) and (b) above, the Issuer’s obligations in Sections 2.01, 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 2.09, 5.02(n), Article VI, Sections 8.01, 12.04, 12.05 and 12.06 hereof shall survive until all the Securities have been paid in full. Thereafter, the Issuer’s obligations in Sections 8.01, 12.04 and 12.05 hereof shall survive. Section 12.02 Conditions to Defeasance. The Issuer may exercise its Legal Defeasance option or its Covenant Defeasance option only if: (a) the Issuer irrevocably deposits in trust in the Defeasance/Redemption Account any one or any combination of (i) money, (ii) obligations of, and supported by the full faith and credit of, the U.S. Government (“U.S. Government Obligations”) or (iii) obligations of corporate issuers (“Corporate Obligations”) (provided that any such Corporate Obligations are rated AA+ or higher by Standard & Poor’s and Aa2 or higher by Moody’s at such time and shall not have a maturity of longer than three years from the date of defeasance) for the payment of all principal or Redemption Price, and interest (A) on the Securities or any class or subclass of Securities being defeased, in the case of Legal Defeasance, or (B) on all of the Securities in the case of Covenant Defeasance, in either case, to maturity or redemption, as the case may be; (b) the Issuer delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations or the Corporate Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and interest when due (i) on each class or subclass of Securities being defeased, in the case of Legal Defeasance, or (ii) on all
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of the Securities in the case of Covenant Defeasance, in either case, to maturity or redemption, as the case may be; (c) 91 days pass after the deposit described in clause (a) above is made and during the 91-day period no Event of Default specified in Section 4.01(e) or (f) hereof with respect to the Issuer occurs which is continuing at the end of the period; (d) the deposit described in clause (a) above does not constitute a default under any other agreement binding on the Issuer; (e) the Issuer delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit described in clause (a) does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended; (f) in the case of the Legal Defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (ii) since the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (g) in the case of the Covenant Defeasance option, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (h) if the related Securities are then listed on any securities exchange, the Issuer delivers to the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Securities to be delisted; (i) a Rating Agency Confirmation and the prior written consent of each of the Policy Provider and the Initial Credit Facility Provider is obtained relating to the defeasance contemplated by this Section 12.02; (j) in the case of a Legal Defeasance only, the Policy shall be terminated and surrendered to the Policy Provider for cancellation; (k) all amounts due and owing to the Policy Provider and the Initial Credit Facility Provider have been paid (or provided for under Section 12.02(a)); and (l) the Issuer delivers to the Trustee an Opinion of Counsel and an Officer’s Certificate that all conditions precedent to such defeasance has been satisfied. Section 12.03 Application of Trust Money. The Trustee shall hold in trust in the Defeasance/Redemption Account money, U.S. Government Obligations or Corporate
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Obligations deposited with it pursuant to this Article XII. It shall apply the deposited money and the money from U.S. Government Obligations or Corporate Obligations in accordance with this Indenture to the payment of principal, premium, if any, and interest on the class or subclass of Securities. Money and securities so held in trust are not subject to Article X hereof or to Article VII of the Security Trust Agreement. Section 12.04 Repayment to Issuer. The Trustee shall promptly turn over to the Issuer upon written request any excess money or securities held by it at any time after application of the appropriate defeasance option. Subject to any applicable abandoned property law, the Trustee shall pay to the Issuer upon written request any money held by it for the payment of principal or interest that remains unclaimed for two years and, thereafter, Holders entitled to the money must look to the Issuer for payment as general creditors. Section 12.05 Indemnity for Government Obligations and Corporate Obligations. The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or Corporate Obligations, or the principal and interest received on such U.S. Government Obligations or Corporate Obligations, which has been remitted by the Trustee to the U.S. government or any taxing authority. Section 12.06 Reinstatement. If the Trustee is unable to apply any money or U.S. Government Obligations or Corporate Obligations in accordance with this Article XII by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Article XII until such time as the Trustee is permitted to apply all such money, U.S. Government Obligations or Corporate Obligations in accordance with this Article XII; provided, however, that, if the Issuer has made any payment of interest on or principal of any Securities because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money, U.S. Government Obligations or Corporate Obligations held by the Trustee. | EXCERPTS ON THIS PAGE:
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