Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to one refinancing, in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing). (b) Notwithstanding anything herein to the contrary, the Refinancing will not be permitted unless the Owner Participant shall have received at least ten (10) Business Days' prior written notice of the closing date of such Refinancing, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereof. Prior to the consummation of the Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture. (c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of such Refinancing transaction. (d) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions: (i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture; (ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee; (iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is given; (iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained; (v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture; (vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01; (vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing; (viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and (ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to one refinancing, three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancing Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to the Owner Participantit), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least ten (10) Business Days' 15 days prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing, Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the opinion referred Operative Agreements prior to in the proviso to Section 15.01(d)(iii) hereofsuch proposed Refinancing. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Rent and setting forth Stipulated Loss Values, Values and Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, Without the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case prior written consent of the Owner Participant, direction to which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each aggregate principal amount of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on indebtedness to be substituted for the Loan Certificates payable under Section 6.02 to exceed the aggregate principal amount of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is given;
(iv) All authorizations, approvals and consents which in the reasonable judgment remaining weighted average life of the Owner Participant are necessary for then outstanding Loan Certificates, or (3) cause the date of maturity of such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed indebtedness to provide to be later than the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement date of maturity of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated RefinancingLoan Certificates being refinanced.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, on any date on or after the fifth anniversary of the Delivery Date (except in the case of a refinancing which occurs after a Noteholder has requested the payment of (x) any Increased Costs pursuant to Section 2.14(a) of the Indenture or (y) any amounts pursuant to Article 6 hereof in respect of withholding Taxes, in which case such refinancing may be requested by the Lessee at any time), the Lessee may request the Owner Participant to participate in up to one refinancing, two refinancings in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), Dollars and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates Equipment Notes issued in connection with such any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least ten (10) Business Days15 days' prior written notice of the scheduled closing date of such Refinancing, Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory in form and substance to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Rent and setting forth Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies provides an indemnity on an After Tax Basis to the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of themthem (provided that Taxes are excluded from such -------- indemnity), for any liability, obligation (other than than, in the case of the Owner Trustee, the non-recourse obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums Amount or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of such Refinancing transaction.
(d) Each Without the prior written consent of the Owner Participant, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Equipment Notes to exceed the aggregate principal amount of the then outstanding Equipment Notes, (2) cause the weighted average life of such indebtedness to be longer than the remaining weighted average life of the then outstanding Equipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Equipment Notes being refinanced.
(e) Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates Equipment Notes then outstanding; provided, however, -------- ------- that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of shall have been made with respect to principal, accrued interest, Make-Whole Premium and breakage costsAmount, if any, and all other sums due and owing on the Certificates Equipment Notes payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counselcounsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel selected by Owner Participant and reasonably satisfactory to the Lessee that such Refinancing shall not result in any, or the risk of any, adverse tax consequences to such Owner Participant, unless the Lessee shall have provided, or caused to be provided, an indemnity in respect thereof satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is given;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) The documentation relating to such In the event the Lessee shall not prohibit the purchase of the Refinancing shall loan certificates by, or with the assets of, an ERISA Plan, the Lessee will permit the Lessee to place placement of the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify Plan only if either (A) if such placement is in the Owner Participantform of pass-through certificates, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-co- manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Refinancing loan certificates Lessee that it has an a prohibited transaction exemption from the prohibited transaction rules under Section 406 U.S. Department of ERISA and Section 4975 of the Code Labor with respect to pass pass-through certificates, certificates (such as Prohibited Transaction Exemption 9089-24 88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass-through certificates, unless purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that they are relying on a prohibited transaction exemption is not available or is not valid from the U.S. Department of Labor with respect to such their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be). If The reliance on any such exemption is will not available or is not valid, then the Lessee shall indemnify be conditional on the Owner Participant pursuant to, and Participant's representation concerning its party in interest or other status with respect to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placementPlans; and
(ixvii) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)and disbursements) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to one refinancing, in whole but not in part, of the Certificates On or prior to the end Initial Borrowing Date, the total commitments in respect of the Basic Term (a "Refinancing"). Such Refinancing may be placed Existing Credit Agreement shall have been terminated, and all loans and notes with respect thereto shall have been repaid in either the private or public markets full, together with interest thereon, all letters of credit issued thereunder and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk contracts contemplated thereunder shall have been terminated and all other amounts (including premiums) owing pursuant to the Owner Participant), Existing Credit Agreement shall have been repaid in full and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly all documents in good faith to conclude an agreement with the Lessee as to the terms of such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing and the documentation to be executed in connection therewith). Without the prior written consent respect of the Owner Participant, the prospectus Existing Credit Agreement and other offering materials relating to such Refinancing in the form all guarantees with respect thereto shall have been terminated and be of a public offering shall not identify the Owner Participant no further force and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)effect.
(b) Notwithstanding anything herein On or prior to the contraryInitial Borrowing Date, the Refinancing will not be permitted unless the Owner Participant Borrower shall have received at least ten (10) Business Days' prior written notice repurchased, retired or redeemed all of the closing date of outstanding Existing Subordinated Notes for cash, in accordance with their terms, or on such Refinancingother terms and conditions as may be satisfactory to the Agent and the Required Banks, and all securities and note purchase agreements, purchase or sale agreements or other agreements pursuant to which the Owner Participant Existing Subordinated Notes were issued and all guaranties and security documents with respect thereto shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation terminated and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss be of no further force or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereof. Prior to the consummation of the Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indentureeffect.
(c) Notwithstanding On the foregoingInitial Borrowing Date, the Owner Participant shall have no obligation to proceed with the Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest creditors in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of such Refinancing transaction.
(d) Each party agrees to take or cause Indebtedness to be taken Refinanced shall have terminated and released all requested action, including, without limitation, security interests and Liens on the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee assets owned by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium Borrower and breakage costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party its Subsidiaries. The Agent shall have received such opinions releases of counselsecurity interests in and Liens on the assets owned by the Borrower and its Subsidiaries as may have been requested by the Agent, certificates and other documents as it may reasonably request, each which releases shall be in form and substance reasonably satisfactory to such partythe Agent. Without limiting the foregoing, includingthere shall have been delivered (i) proper termination statements (Form UCC-3 or the appropriate equivalent) for filing under the UCC of each jurisdiction where a financing statement (Form UCC-1 or the appropriate equivalent) was filed with respect to the Borrower or any of its Subsidiaries in connection with the security interests created with respect to the Indebtedness to be Refinanced and the documentation related thereto, without limitation(ii) termination or reassignment of any security interest in, an opinion received by or Lien on, any patents, trademarks, copyrights, or similar interests of the Owner Participant from independent tax counsel Borrower or any of its Subsidiaries on which filings have been made, (iii) terminations of all mortgages, leasehold mortgages, deeds of trust and leasehold deeds of trust created with respect to property of the Borrower or any of its Subsidiaries, in each case, to secure the obligations in respect of the Indebtedness to be Refinanced, all of which shall be in form and substance reasonably satisfactory to the Lessee that such Refinancing Agent, (iv) termination notices and agreements with respect to all lockbox, warehousing, bailee and similar agreements, duly acknowledged by all counterparties thereto, all of which shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory be in form and substance reasonably satisfactory to the Owner ParticipantAgent, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken and (v) all collateral owned by the Owner Participant Borrower or any of its Subsidiaries in the possession of any of the creditors in respect of which such indemnity is given;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing Indebtedness to be Refinanced or any collateral agent or trustee under any related security document shall have been obtained;
(v) The Lessee shall have provided or agreed to provide returned to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction Borrower or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated RefinancingSubsidiary.
Appears in 1 contract
Sources: Credit Agreement (Labtec Inc /Ma)
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may request the Owner Participant to participate in up to one refinancing, two refinancings in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), Dollars and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates Equipment Notes issued in connection with such any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least ten (10) Business Days15 days' prior written notice of the scheduled closing date of such Refinancing, Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Rent and setting forth Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance reasonably satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Equipment Notes to exceed the aggregate principal amount of the then outstanding Equipment Notes, (2) cause the weighted average life of such indebtedness to be different by more than six months than the remaining weighted average life of the then outstanding Equipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Equipment Notes being refinanced.
(e) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates Equipment Notes then outstanding; provided, however, that such Refinancing shall be -------- ------- subject to the satisfaction of each of the following conditions:
(i) Payment of shall have been made with respect to principal, accrued interest, Make-Whole Premium and breakage costsPremium, if any, and all other sums due and owing on the Certificates Equipment Notes payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), providedcertificates and other documents as it may reasonably request, however, that if each in form and substance reasonably satisfactory to such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is givenparty;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) The documentation relating to such In the event the Lessee shall not prohibit the purchase of the Refinancing shall loan certificates by, or with the assets of, an ERISA Plan, the Lessee will permit the Lessee to place placement of the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify Plan only if either (A) if such placement is in the Owner Participantform of pass-through certificates, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Refinancing loan certificates Lessee that it has an a prohibited transaction exemption from the prohibited transaction rules under Section 406 U.S. Department of ERISA and Section 4975 of the Code Labor with respect to pass pass-through certificates, certificates (such as Prohibited Transaction Exemption 9089-24 88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass-through certificates, unless purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that (1) either they are relying on a prohibited transaction exemption is not available or is not valid from the U.S. Department of Labor with respect to such their purchase and holding of the Refinancing loan certificates (or such pass-through certificates. If , as the case may be) or (2) their purchase and holding of the Refinancing loan certificates (or such exemption is pass- through certificates, as the case may be) will not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, constitute a non-exempt prohibited transaction under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from . The reliance on any such placementexemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans; and
(ixvii) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)fees) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to one refinancing, two refinancings in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancing Refinancings may be placed in either the private or public markets on terms satisfactory to the Lessee and shall the Owner Participant and may be denominated placed outside the United States, in United States dollars (or in any other foreign currency so long as there is no foreign currency risk currency. The Lessee may require the Owner Trustee to convey nominal title to the Owner Participant), and shall be on terms that do not materially adversely affect the Owner ParticipantAircraft for security purposes only in a transaction structured as a conventional equipment trust certificate financing. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering including, without limitation, an offering under Rule 144A promulgated under the Securities Act of 1933, as amended, (i) the Owner Participant shall have a right of review (which shall be undertaken promptly to accommodate the proposed Refinancing schedule) and approval (which shall not be unreasonably withheld) with respect to the description of the transaction in any offering materials to be used in connection with such offering, and (ii) the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing), the final maturity of the new Certificates shall be no later than that of the old Certificates, and the Owner Participant's equity investment in the transaction shall not be increased.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant shall have received at least ten (10) 15 Business Days' prior written notice of the closing date of such Refinancing, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review and comment on the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or material adverse effect upon the rights or obligations or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including including, without limitation, the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Termination Values and EBO Price Amount payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense out-of-pocket costs and expenses (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and or any other premiums premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the foregoing conditions in this Section 15.01 and each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), providedcertificates and other documents as it may reasonably request, however, that if each in form and substance reasonably satisfactory to such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is givenparty;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to no Default or Event of Default will result from such Refinancing;; and
(viii) The documentation relating In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to such Refinancing shall Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the Lessee to place placement of the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify Plan only if either (A) if such placement is in the Owner Participantform of pass through certificates, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates represents to the Lessee that it has an a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates, such purchasers further represent that (1) either they are relying on a prohibited transaction rules exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding the satisfaction of the relevant conditions of such an exemption or (2) their purchase and holding of the Refinancing loan certificates will not constitute a non-exempt prohibited transaction under Section 406 of ERISA and or Section 4975 of the Code Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 ERISA Plans. If neither exemption referred to in clause (A) or (B) of this paragraph (viii) is valid or applicable in any other comparable exemption, unless such exemption is not available or is not valid with respect to such the purchase and holding of the Refinancing loan certificates. If , or if the representation in clause (B) of this paragraph (viii) that such exemption purchase and holding will not constitute a non-exempt prohibited transaction is not available or correct, whichever is not validapplicable, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles Sections 8 and 9 hereof for Taxes and Expenses arising under or in connection with resulting from any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to the placement of the Refinancing loan certificates with, or the holding of the Refinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person, within the meaning of Section 4975 of the Code, resulting from such placement; and
(ix) The provided, however, that if the Lessee shall pay all costs fail to obtain either of the representations set forth in clause (A) or (B) of this paragraph (viii), such indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xii) and expenses (including legal fees (including allocated time charges of internal counsel)9.01(b)(ix) incurred in connection with any proposed or actually consummated Refinancinghereof.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may request the Owner Participant to participate in up to one refinancing, two refinancings in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least ten (10) Business Days15 days' prior written notice of the scheduled closing date of such Refinancing, Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Rent and setting forth Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance reasonably satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Equipment Notes to exceed the aggregate principal amount of the then outstanding Equipment Notes, (2) cause the weighted average life of such indebtedness to be different by more than six months than the remaining weighted average life of the then outstanding Equipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Equipment Notes being refinanced.
(e) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates Equipment Notes then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of shall have been made with respect to principal, accrued interest, Make-Whole Premium and breakage costsPremium, if any, and all other sums due and owing on the Certificates Equipment Notes payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), providedcertificates and other documents as it may reasonably request, however, that if each in form and substance reasonably satisfactory to such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is givenparty;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) The documentation relating In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to such Refinancing shall Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the Lessee to place placement of the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify Plan only if either (A) if such placement is in the Owner Participantform of pass-through certificates, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Refinancing loan certificates Lessee that it has an a prohibited transaction exemption from the prohibited transaction rules under Section 406 U.S. Department of ERISA and Section 4975 of the Code Labor with respect to pass through certificates, Pass-Through certificates (such as Prohibited Transaction Exemption 9089-24 88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass-through certificates, unless purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that (1) either they are relying on a prohibited transaction exemption is not available or is not valid from the U.S. Department of Labor with respect to such their purchase and holding of the Refinancing loan certificates (or such pass-through certificates. If , as the case may be) or (2) their purchase and holding of the Refinancing loan certificates (or such exemption is pass-through certificates, as the case may be) will not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, constitute a non-exempt prohibited transaction under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from . The reliance on any such placementexemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans; and
(ixvii) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)fees) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant Participants to participate in up to one refinancingthree refinancings, in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"), provided, that, such Refinancing may not occur prior to the fifth anniversary of the Delivery Date. Such Refinancing Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner ParticipantParticipants), and shall be on terms that do not materially adversely affect the such Owner Participant. The Each Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the applicable Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the such Owner Participant and shall not include any financial statements of the such Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant Participants for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the each Owner Participant shall have received at least ten (10) 10 Business Days' prior written notice of the closing date of such Refinancing, the each Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the each Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the such Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the such Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant Participants and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Values and Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant Participants shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant Participants by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participants as provided herein.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner ParticipantParticipants, direction to the Owner Trustee by the Owner Participant Participants to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, counsel (including, without limitation, an opinion received by the Owner Participant Participants from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such the Owner ParticipantParticipants, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner ParticipantParticipants), providedcertificates and other documents as it may reasonably request, however, that if each in form and substance reasonably satisfactory to such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is givenparty;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the each Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the each Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;; and
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the any Owner Participant, or any of the such Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the such Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to one refinancingthree refinancings, in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"), provided, that, such Refinancing may not occur prior to the fifth anniversary of the Refunding Date. Such Refinancing Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the applicable Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant shall have received at least ten (10) 10 Business Days' prior written notice of the closing date of such Refinancing, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Values and Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participant as provided herein.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is given;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to one refinancing, two refinancings in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancing Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to the Owner Participantit), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least ten (10) Business Days15 days' prior written notice of the scheduled closing date of such Refinancing, Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the opinion referred Operative Agreements prior to in the proviso to Section 15.01(d)(iii) hereofsuch proposed Refinancing. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Rent and setting forth Stipulated Loss Values, Values and Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Certificates to exceed the aggregate principal amount of the then outstanding Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Certificates being refinanced.
(e) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), providedcertificates and other documents as it may reasonably request, however, that if each in form and substance reasonably satisfactory to such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is givenparty;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to such Refinancing shall Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the Lessee to place placement of the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify Plan only if either (A) if such placement is in the Owner Participantform of pass through certificates, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates represents to the Lessee that it has an a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates, such purchasers further represent that (1) either they are relying on a prohibited transaction rules exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding the satisfaction of the relevant conditions of such an exemption or (2) their purchase and holding of the Refinancing loan certificates will not constitute a non-exempt prohibited transaction under Section 406 of ERISA and or Section 4975 of the Code Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 ERISA Plans. If neither exemption referred to in clause (A) or (B) of this paragraph (viii) is valid or applicable in any other comparable exemption, unless such exemption is not available or is not valid with respect to such the purchase and holding of the Refinancing loan certificates. If , or if the representation in clause (B) of this paragraph (viii) that such exemption purchase and holding will not constitute a non-exempt prohibited transaction is not available or correct, whichever is not validapplicable, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles Sections 8 and 9 hereof for Taxes and Expenses arising under or in connection with resulting from any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to the placement of the Refinancing loan certificates with, or the holding of the Refinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person, within the meaning of Section 4975 of the Code, resulting from provided, however, that if the Lessee shall fail to obtain either of the representations set forth in clause (A) or (B) of this paragraph (viii), such placementindemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xii)(A) and (B) and 9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)fees) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to one refinancingthree refinancings (including the refinancing contemplated by this Agreement on the Refunding Date), in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"), provided, that, except in connection with the Refinancing contemplated by this Agreement on the Refunding Date, such Refinancing may not occur prior to the fifth anniversary of the Refunding Date. Such Refinancing Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant shall have received at least ten (10) 10 Business Days' prior written notice of the closing date of such Refinancing, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or material adverse effect upon the rights or obligations or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Interim Rent, Basic Rent, Stipulated Loss Values, Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participant as provided in Article 10 hereof.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment payment of principal, accrued interest, Make-Whole Premium and breakage costsBreakage Costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), providedcertificates and other documents as it may reasonably request, however, that if each in form and substance reasonably satisfactory to such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is givenparty;
(iv) All all authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The the Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costsBreakage Costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The the satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No no Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating the Indenture Trustee shall have received no later than the Business Day next preceding the day 15 days prior to the effective date of such Refinancing irrevocable notice of such Refinancing; and
(ix) in the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a plan, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the Lessee to place placement of the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify Plan only if either (A) if such placement is in the Owner Participantform of pass through certificates, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates represents to the Lessee that it has an a prohibited transaction exemption from the prohibited transaction rules under Section 406 U.S. Department of ERISA and Section 4975 of the Code Labor with respect to pass through certificates, certificates (such as Prohibited Transaction Exemption 90-24 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates provide a representation regarding their source of funds used in acquiring the Refinancing loan certificates and, unless if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates, such purchasers further represent that either a prohibited transaction exemption from the U.S. Department of Labor is not available or is not valid with respect to their purchase and holding of the Refinancing loan certificates or that their purchase and holding of the Refinancing loan certificates will not constitute a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans. If neither exemption referred to in clause (A) or (B) of this paragraph (viii) is valid or applicable in any respect to the purchase and holding of the Refinancing loan certificates. If , or if the representation in clause (B) of this paragraph (viii) that such exemption purchase and holding will not constitute a prohibited transaction is not available or correct, whichever is not valid, applicable then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles Sections 8 and 9 hereof for Taxes and Expenses arising under or in connection with resulting from any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c) (1) of the Code, occurring with respect to the placement of the Refinancing loan certificates with, or the holding of the Refinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person, within the meaning of Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to The Issuer may, at the terms and conditions direction of this Section 15.01the Holders of at least 662/3% of the Outstanding Principal Balance of the Class F Notes, effect a refinancing of the Lessee may request the Owner Participant to participate in up to one refinancingOffered Notes (a “Refinancing”), in whole but not in part, on any Payment Date on or after the Payment Date occurring on September 21, 2009 (such date, a “Refinancing Date”) by payment of the Certificates prior Refinancing Price to the end Holders of the Basic Term Offered Notes and other Persons entitled thereto (such Refinancing Date to be specified in a "Refinancing"). Such Refinancing may notice to be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk delivered to the Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing and the documentation to be executed in connection therewith). Without the Issuer at least 10 Business Days prior written consent of the Owner Participant, the prospectus and other offering materials relating to such Refinancing Date). To effect a Refinancing, the Issuer shall deposit in the form of a public offering shall not identify Note Distribution Account by no later than 1:00 p.m. (New York City time) on the Owner Participant applicable Refinancing Date an amount equal to the Refinancing Price and shall not include any financial statements comply with the provisions of the Owner Participant or any Affiliate thereof. In connection with such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)this Section 10.03 and Section 10.04.
(b) Notwithstanding anything herein to the contraryAny Refinancing shall be permitted only in connection with an issuance of additional notes (such notes, the Refinancing “Replacement Notes”), the proceeds of which will not be permitted unless the Owner Participant shall have received at least ten (10) Business Days' prior written used to fully prepay all Classes of Offered Notes. Upon receipt of a notice of the closing date of such Refinancing, the Owner Participant shall have been provided such longer period required for a reasonable opportunity Servicer will cause the Issuer to review the relevant documentation issue and the Owner Participant shall have determined Indenture Trustee shall, upon receipt of an Issuer Order, authenticate and deliver Replacement Notes having the terms, priorities and conditions set forth in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences supplemental indenture to the Owner Participant including Indenture approved by the application Holders of Revenue Procedures 75-21 and 75-28 and Section 467 at least 662/3% of the Code) for which it has not been or will not have been indemnified Outstanding Principal Balance of the Class F Notes and approved by the Lessee Servicer. No Refinancing shall be permitted hereunder unless, after giving effect thereto, the Offered Notes shall be prepaid in a manner reasonably satisfactory full. The issue of the Replacement Notes, and the prepayment of the Offered Notes, will be contingent on receipt by the Issuer of sufficient funds from the issuance of the Replacement Notes to prepay in full the Owner Participant Offered Notes and has not received the opinion referred to pay certain other amounts by payment in the proviso to Section 15.01(d)(iii) hereof. Prior to the consummation full of the Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the IndenturePrice.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with The portion of the Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each Price constituting payment of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counselOffered Notes shall be distributed to Noteholders in accordance with Section 7.05(b) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of such Refinancing transaction.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium Sale and breakage costs, if any, Servicing Agreement and all other sums due and owing on amounts included in the Certificates payable under Refinancing Price shall be distributed in accordance with Section 6.02 7.05(b) of the Indenture;
(ii) Payment in full of all other amounts then due Sale and owing by the Lessee under this Servicing Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is given;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Sources: Indenture (Capitalsource Inc)
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may request the Owner Participant to participate in up to one refinancing, two refinancings in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), Dollars and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates Equipment Notes issued in connection with such any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least ten (10) Business Days15 days' prior written notice of the scheduled closing date of such Refinancing, Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory in form and substance to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Rent and setting forth Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies provides an indemnity on an After Tax Basis to the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of themthem (provided that Taxes are excluded from such indemnity), for any liability, obligation (other than than, in the case of the Owner Trustee, the non-recourse obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of such Refinancing transaction.
(d) Each Without the prior written consent of the Owner Participant, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Equipment Notes to exceed the aggregate principal amount of the then outstanding Equipment Notes, (2) cause the weighted average life of such indebtedness to be longer than the remaining weighted average life of the then outstanding Equipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Equipment Notes being refinanced.
(e) Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates Equipment Notes then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of shall have been made with respect to principal, accrued interest, Make-Whole Premium and breakage costsPremium, if any, and all other sums due and owing on the Certificates Equipment Notes payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counselcounsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel selected by Owner Participant and reasonably satisfactory to the Lessee that such Refinancing shall not result in any, or the risk of any, adverse tax consequences to such Owner Participant, unless the Lessee shall have provided, or caused to be provided, an indemnity in respect thereof satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is given;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) The documentation relating to such In the event the Lessee shall not prohibit the purchase of the Refinancing shall loan certificates by, or with the assets of, an ERISA Plan, the Lessee will permit the Lessee to place placement of the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify Plan only if either (A) if such placement is in the Owner Participantform of pass-through certificates, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Refinancing loan certificates Lessee that it has an a prohibited transaction exemption from the prohibited transaction rules under Section 406 U.S. Department of ERISA and Section 4975 of the Code Labor with respect to pass through certificates, Pass-Through certificates (such as Prohibited Transaction Exemption 9089-24 88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass-through certificates, unless purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that they are relying on a prohibited transaction exemption is not available or is not valid from the U.S. Department of Labor with respect to such their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be). If The reliance on any such exemption is will not available or is not valid, then the Lessee shall indemnify be conditional on the Owner Participant pursuant to, and Participant's representation concerning its party in interest or other status with respect to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; andPlans;
(ixvii) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)and disbursements) incurred in connection with any proposed or actually consummated Refinancing.; and
(viii) In the case of Refinancings after the first Refinancing, the Lessee shall pay the Owner Participant, upon the consummation of any such Refinancing, a refinancing fee in the aggregate amount of $75,000 (it being understood that there is no such refinancing fee payable on the first Refinancing); provided that, in the event such Refinancing also involves the indebtedness issued under any Related Indenture, the payment of this fee under this Section 13.01(e)
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to one refinancing, three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancing Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least ten (10) 10 Business Days' prior written notice of the scheduled closing date of such Refinancing, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Rent and setting forth Stipulated Loss Values, Values and Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participant as provided herein.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costsBreakage Costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such the Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), providedcertificates and other documents as it may reasonably request, however, that if each in form and substance reasonably satisfactory to such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is givenparty;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costsBreakage Costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating to such Refinancing shall permit In the event the Lessee to place shall not prohibit the purchase of the Refinancing loan certificates (or pass through certificates, if the placement is in the form of pass through certificates), by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the placement of the Refinancing loan certificates or pass through certificates, as the case may be, with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any Plan only if purchasers of the Owner Participant's AffiliatesRefinancing loan certificates or holders of pass through certificate holders, assignsas the case may be, officersprovide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates or pass through certificates, directorsas the case may be, employeesand, agents if such purchasers or holders represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates or pass through certificates, as the case may be, such purchasers further represent that (1) either they are relying on a prohibited transaction exemption from the U.S. Department of Labor with respect to their purchase and servantsholding of the Refinancing loan certificates or pass through certificates, for any Taxesas the case may be, within and they provide representations regarding the meaning satisfaction of Article 8 hereofthe relevant conditions of such an exemption or (2) their purchase and holding of the Refinancing loan certificates or pass through certificates, or Expensesas the case may be, within the meaning of Article 9 hereof, arising will not constitute a non-exempt prohibited transaction under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if . The reliance on any such exemption will not be conditional on the sole underwriter Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans. If the manager exemption referred to in this paragraph (viii) is not valid or co-manager of applicable in any respect to the underwriting syndicate or the selling or placement agent purchase and holding of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to or pass through certificates, as the case may be, or if the representation in this paragraph (viii) that such as Prohibited Transaction Exemption 90purchase and holding will not constitute a non-24 or any other comparable exemption, unless such exemption exempt prohibited transaction is not available or correct, whichever is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not validapplicable, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with resulting from any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to the placement of the Refinancing loan certificates with, or the holding of the Refinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person, within the meaning of Section 4975 of the Code, resulting from provided, however, that if the Lessee shall fail to obtain the representations set forth in this paragraph (viii), such placementindemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xii) and 9.01(b)(ix) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)fees) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may may, at any time after the third anniversary of the Delivery Date, request the Owner Participant to participate in up to one refinancing, two (2) refinancings in whole but not in part, of the Certificates prior to the end of during the Basic Term (a "Refinancing")) provided that on the date of such Refinancing no Payment Default, Bankruptcy Default or Event of Default shall have occurred and be continuing. Such Refinancing may be placed in either the private or public markets in the United States or outside the United States and shall be denominated in United States dollars (or in any other foreign currency so long as provided that there is no foreign currency risk to the Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)) and the final maturity of the new Certificates shall be no later than that of the old Certificates.
(bi) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant shall have received at least ten (10) 15 Business Days' prior written notice of the closing date of such Refinancing, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which (in the case of such loss, expense or tax) it has not been or will not have been indemnified in connection with such Refinancing by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iiiParticipant.
(ii) hereof. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance reasonably satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Certificates.
(e) Each party agrees to take or cause to be taken taken, at the Lessee's sole cost and expense, all action reasonably requested actionby the Lessee, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant), unless the Lessee shall have agreed to provide an indemnity in respect thereof certificates and other documents as it may reasonably satisfactory request, each in form and substance reasonably satisfactory to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is givenparty;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to such Refinancing shall Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the Lessee to place placement of the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify Plan only if either (A) if such placement is in the Owner Participantform of pass through certificates, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates represents to the Lessee that it has an a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates and, if such purchasers represent that they are using funds of an ERISA Plan (which may be in the form of a deemed representation) in acquiring the Refinancing loan certificates, such purchasers further represent that (1) either they are relying on a prohibited transaction rules exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding the satisfaction of the relevant conditions of such an exemption or (2) their purchase and holding of the Refinancing loan certificates will not constitute a non-exempt prohibited transaction under Section 406 of ERISA and or Section 4975 of the Code Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificatesERISA Plans. If such exemption is not available or is not valid, then the The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles Sections 8 and 9 hereof for Taxes and Expenses arising under or in connection with resulting from any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to the placement of the Refinancing loan certificates with, or the holding of the Refinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person, within the meaning of Section 4975 of the Code, resulting from such placement; and
(ix) The provided, however, that if the Lessee shall pay all costs fail to obtain either of the representations set forth in clause (A) or (B) of this paragraph (viii), such indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and expenses (including legal fees (including allocated time charges of internal counsel)9.01(b)(ix) incurred in connection with any proposed or actually consummated Refinancinghereof.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01The Concessionaire shall not, the Lessee may request the Owner Participant to participate in up to one refinancing, in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing and the documentation to be executed in connection therewith). Without without the prior written consent of the Owner ParticipantImplementing Authority, undertake or enter into any Refinancing (which consent shall be given in the prospectus and other offering materials relating to absolute discretion of the Implementing Authority unless such Refinancing in the form is necessitated by a default or potential event of a public offering shall not identify the Owner Participant and shall not include any financial statements default of the Owner Participant or Concessionaire under the Loan Agreements in which case the Implementing Authority must not unreasonably withhold such consent). The Concessionaire shall provide the Implementing Authority with not less than 60 days notice of any Affiliate thereof. In connection with proposed Refinancing, including the terms of such Refinancing in and the form Concessionaire's proposals as to the amount and terms of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount payment of the new Certificates issued in connection with such Refinancing shall be Gain (if any). Where the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing).
(b) Notwithstanding anything herein Implementing Authority consents to the contrary, the Refinancing will not be permitted unless the Owner Participant shall have received at least ten (10) Business Days' prior written notice of the closing date of such any Refinancing, the Owner Participant Concessionaire shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences pay to the Owner Participant including Implementing Authority in accordance with Clause 3.9.4 per cent of an amount which is the application of Revenue Procedures 75-21 lesser of: the Refinancing Gain; and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereof. Prior to the consummation that part of the Refinancing Gain that results in the IRR exceeding per cent. For the purposes of Clause 3.9, "Refinancing Gain" shall mean an amount equal to the monetary value that would, but for the provisions of this clause 3.9, be derived by the Shareholders from the increase in the IRR which results from the Refinancing; such IRR and monetary value to be determined by amending the Financial Base Case to reflect the terms of the Refinancing and updating the Financial Base Case to reflect the then current financial status of the Concessionaire and the Project (in both cases) on such basis as is agreed by the Implementing Authority. The amount payable to the Implementing Authority pursuant to Clause 3.9.3 shall be paid to the Implementing Authority as follows: if the Refinancing entitles the Concessionaire to draw additional funds, an immediate cash payment on the first date on which the Concessionaire is entitled to draw such additional or new funds; or in all other cases, on the dates and in the amounts agreed by the Parties (or, in the event of disagreement, as determined in accordance with the Dispute Resolution Procedure) as being the dates when the Refinancing Gain would otherwise accrue to the Shareholders and the amounts of the Refinancing Gain that would otherwise accrue to the Shareholders, which dates and amounts shall be specified in a schedule prior to the date the Refinancing takes effect. For the avoidance of doubt, payments of amounts payable to the Implementing Authority pursuant to this Section 15.01, the Owner Participant and the Lessee Clause 3.9 shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Termination Values and EBO Price payable pursuant rank in priority to the Lease all Distributions (as a result of the Refinancing defined in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule Annexure XVI) but shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of such Refinancing transaction.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall otherwise be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents same restrictions as it may reasonably request, each in form and substance reasonably satisfactory to such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory apply to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect payment of which such indemnity is given;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent Distributions under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated RefinancingLoan Agreements.
Appears in 1 contract
Sources: Concession Contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the an Owner Participant to participate in up to one refinancing, refinancing in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant), and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least ten (10) Business Days15 days' prior written notice of the scheduled closing date of such Refinancing, Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and, if an additional indemnity is then provided by the Lessee as the result of such Refinancing and has not received the opinion referred Owner Participant or the Indenture Trustee reasonably deems itself insecure with respect to in such indemnity, the proviso Lessee shall have provided security or collateral for such indemnity which is reasonably satisfactory to Section 15.01(d)(iii) hereofsuch Person nor would such transaction materially and adversely affect the rights and obligations of Owner Participant. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Rent and setting forth Stipulated Loss Values, Values and Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transactiontransaction and, if the Owner Participant reasonably deems itself insecure with respect to such indemnity, the Lessee shall have provided security or collateral for such indemnity which is reasonably satisfactory to the Owner Participant.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, Without the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case prior written consent of the Owner Participant, direction which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to the Owner Trustee by the Owner Participant to prepay be substituted for the Certificates then outstanding; provided, however, that such Refinancing shall be subject to exceed the satisfaction of each aggregate principal amount of the following conditions:
then outstanding Certificates, (i2) Payment cause the weighted average life of principalsuch indebtedness to be different by more than three months than the remaining weighted average life of the then outstanding Certificates, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is given;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated Refinancingbeing refinanced.
Appears in 1 contract
Sources: Participation Agreement (Atlantic Coast Airlines Inc)
Refinancing. Except as otherwise provided in the OPA (aincluding any attachments thereto) Subject to and herein, Owner shall not refinance the terms and conditions of this Section 15.01, Senior Loan and/or Permanent Loan for the Lessee may request Affordable Units or place any additional financing on the Owner Participant to participate in up to one refinancing, in whole but not in part, Property without the advance written consent of the Certificates prior Mayor. Notwithstanding the foregoing sentence, Owner shall have the right, from time-to-time, to refinance the end of the Basic Term Permanent Loan (a "Refinancing"). Such Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk , subject to the Owner Participant), and following conditions: (i) the debt obtained pursuant to a Refinancing shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of such Refinancing transaction exceed eighty percent (including the terms of any debt to be issued in connection with such Refinancing and the documentation to be executed in connection therewith). Without the prior written consent 80%) of the Owner Participant, the prospectus and other offering materials relating to such Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements value of the Owner Participant or any Affiliate thereof. In connection with such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with such Refinancing shall be the same Property as the aggregate principal amount outstanding on the Certificates being refinanced determined by an appraisal conducted at Owner’s expense by an MAI appraiser selected by Owner’s lender (assuming no principal on the old Certificates was due on the date of such Refinancing).
(b) Notwithstanding anything herein to the contrary, the Refinancing will not be permitted unless the Owner Participant shall have received at least ten (10) Business Days' prior written notice of the closing date of such Refinancing, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereof. Prior to the consummation of the Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of such Refinancing transaction.
(d) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing appraiser shall be subject to the satisfaction approval of each Mayor); (ii) the mortgage securing the Refinancing (“Refinance Mortgage”) shall cover all of Owner’s interest in the Property, the Improvements and, without the prior express consent of Mayor, which Mayor shall not unreasonably withhold, condition or delay, shall cover no interest in any other real property; (iii) no such Refinance Mortgage shall be binding upon City in the enforcement of its rights and remedies upon the Property, unless and until Owner delivers or causes to be delivered to City a certified copy of the following conditions:
fully executed original Refinance Mortgage bearing the date and recording information and a certified copy of the original note secured by the Refinance Mortgage, together with written notice of the address of the mortgagee for the Refinance Mortgage to which notices may be sent; and (iv) no Refinance Mortgage permitted by this section shall cover more than one indebtedness (that is, there shall be no cross-collateralization permitted). If, at any time, Owner completes a Refinancing, Owner shall apply the Net Refinancing Proceeds (as defined in the City Note) as follows: (i) Payment of principalfirst, accrued interest, Make-Whole Premium and breakage costs, if any, to pay any and all other sums due and owing accrued interest on the Certificates payable under Section 6.02 of the Indenture;
City Loan; and (ii) Payment in full second, forty percent (40%) of all other amounts then due such remaining net proceeds shall be paid towards reducing the principal balance of the City Loan to the applicable principal balance amount indicated on City Loan Amortization Schedule attached to the OPA as Attachment No. 22, and owing sixty percent (60%) of such remaining net proceeds shall be paid to the Owner. To the extent that Refinancing proceeds are used by Borrower to purchase the Lessee under this Agreementinterests of the Tax Credit Investor, the Indenture, City's 40% share of Net Refinancing Proceeds shall be calculated after deduction of the Lease, amount used to pay the Trust Agreement, and the Certificates then outstanding purchase price for such interests. Owner shall have been made by the Lessee;
(iii) Such party shall have received make any such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory payment to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is given;
City within thirty (iv30) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated Refinancingdays following written request therefor.
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Sources: Owner Participation Agreement
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to one refinancingtwo refinancings (including the refinancing contemplated by this Agreement on the Refunding Date), in whole but not in part, of the Certificates prior to the end of the Basic Term (each a "Refinancing"). Such Refinancing Refinancings may be placed in either the private or public markets in the United States and shall be denominated in United States dollars (or in any other foreign currency so long as there is no foreign currency risk to the Owner Participant)dollars, and shall be on terms that do reasonably satisfactory to the Owner Participant and shall not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing refinancing transaction (including the terms of any debt to be issued in connection with such Refinancing refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to such any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant for any liabilities under federal, state or foreign securities laws resulting from such offering. The With the exception of the refinancing contemplated by this Agreement on the Refunding Date, the aggregate principal amount of the new Certificates issued in connection with such each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced (assuming no principal on the old Certificates was due on the date of such Refinancing)refinanced.
(b) Notwithstanding anything herein to the contrary, the no Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least ten (10) Business Days' 15 days prior written notice of the scheduled closing date of such Refinancing, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the CodeCode and the Treasury Regulations promulgated thereunder) for which (in the case of such loss, expense or tax) it has not been or will not have been indemnified in connection with such Refinancing by the Lessee in a manner reasonably satisfactory in all respects to the Owner Participant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereofParticipant. Prior to the consummation of the any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, Stipulated Loss Values, and Termination Values and EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with the any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participant as provided herein.
(d) Each party agrees to take or cause to be taken taken, at the Lessee's sole cost and expense, all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costsBreakage Costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party, counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel and reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), providedcertificates and other documents as it may reasonably request, however, that if each in form and substance reasonably satisfactory to such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the tax filing position taken by the Owner Participant in respect of which such indemnity is givenparty;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costsBreakage Costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;; and
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article Section 8 hereof, or Expenses, within the meaning of Article Section 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificatescertificates at the time of such prohibited transaction. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles Section 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and.
(ixe) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred Any debt to be issued in connection with a Refinancing shall have an interest rate that is fixed for the entire term of such debt and shall not include any proposed or actually consummated Refinancingdebt whose fixed interest rate is reset at any time during the term of such debt.
Appears in 1 contract