Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates 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 any other currency provided that there is no foreign currency risk 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 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 consent of the Owner Participant, the prospectus and other offering materials relating to 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 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. (i) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 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. (ii) Prior to the consummation of 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 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 and Make-Whole 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) 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, at the Lessee's sole cost and expense, all action reasonably requested by 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party; (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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereof.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during Equipment Notes prior to the end of 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 any other currency provided that there is no foreign currency risk to the Owner Participant, Dollars and shall not materially adversely affect be on terms 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 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 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 each 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) and the final maturity of the new Certificates shall be no later than that of the old Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Daysdays' 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 (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.
(ii) . Prior to the consummation of 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 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 and Make-Whole 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) 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 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 6 six months than the remaining weighted average life of the then outstanding CertificatesEquipment 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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 Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass pass-through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass pass-through certificates (such as Prohibited Transaction Exemption 89-88 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, 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 (which may be in the form of a deemed representation) 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 from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding (or such pass-through certificates, as the satisfaction of the relevant conditions of such an exemption case may be) or (2) their purchase and holding of the Refinancing loan certificates (or such pass- through certificates, as the case may be) will not constitute a non-exempt 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. ; and
(vii) The Lessee shall indemnify the Owner Participant pursuant to, pay all costs and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses resulting from expenses (including legal fees) incurred in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA proposed 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofactually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during Equipment Notes prior to the end of 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 any other currency provided that there is no foreign currency risk to the Owner Participant, Dollars and shall not materially adversely affect be on terms 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 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 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 each 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) and the final maturity of the new Certificates shall be no later than that of the old Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Daysdays' 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 (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 form and substance to the Owner Participant.
(ii) . Prior to the consummation of 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 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 reasonably 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 and Make-Whole 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) 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 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 6 months longer than the remaining weighted average life of the then outstanding CertificatesEquipment 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 Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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 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;
(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 Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass pass-through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through Pass-Through certificates (such as Prohibited Transaction Exemption 89-88 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, 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 (which may be in the form of a deemed representation) 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 from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding (or such pass-through certificates, as 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 or Section 4975 of the Codecase may be). 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. ;
(vii) The Lessee shall indemnify pay all costs and expenses (including legal fees and disbursements) incurred in connection with any proposed or actually consummated Refinancing; and
(viii) In the Owner Participant pursuant tocase of Refinancings after the first Refinancing, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, provided, however, that if the Lessee shall fail to obtain either pay the Owner Participant, upon the consummation of any such Refinancing, a refinancing fee in the representations set forth aggregate amount of $75,000 (it being understood that there is no such refinancing fee payable on the first Refinancing); provided that, in clause (A) or (B) the event such Refinancing also involves the indebtedness issued under any Related Indenture, the payment of this paragraph (viiifee under this Section 13.01(e), such indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereof.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during Equipment Notes prior to the end of 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 any other currency provided that there is no foreign currency risk to the Owner Participant, and shall not materially adversely affect be on terms 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 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 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 each 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) and the final maturity of the new Certificates shall be no later than that of the old Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Daysdays' 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 (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.
(ii) . Prior to the consummation of 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 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 and Make-Whole 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) 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 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 6 six months than the remaining weighted average life of the then outstanding CertificatesEquipment 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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 Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass pass-through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through Pass-Through certificates (such as Prohibited Transaction Exemption 89-88 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, 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 (which may be in the form of a deemed representation) 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 from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding (or such pass-through certificates, as the satisfaction of the relevant conditions of such an exemption case may be) or (2) their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be) will not constitute a non-exempt 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. ; and
(vii) The Lessee shall indemnify the Owner Participant pursuant to, pay all costs and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses resulting from expenses (including legal fees) incurred in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA proposed 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofactually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during prior to the end of 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 Refinancings may be placed in either the private or public markets in on terms satisfactory to the United States or Lessee and the Owner Participant and may be placed outside the United States and shall be denominated States, in United States dollars or any other currency provided that there is no foreign currency risk currency. The Lessee may require the Owner Trustee to convey nominal title to the Owner Participant, and shall 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 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 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 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, and the Owner Participant's equity investment in the transaction shall not be increased.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 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 (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.
(ii) . Prior to the consummation of 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 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 out-of-pocket costs and expenses (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or any other 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) 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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 no Default or Event of Default will result from such Refinancing;; and
(viii) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The 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, or if the representation in clause (B) of this paragraph (viii) that such purchase and holding will not constitute a non-exempt prohibited transaction is not correct, whichever is applicable, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii8.01(b)(xii) and 9.01(b)(ix) hereof.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during Equipment Notes prior to the end of 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 any other currency provided that there is no foreign currency risk to the Owner Participant, Dollars and shall not materially adversely affect be on terms 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 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 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 each 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) and the final maturity of the new Certificates shall be no later than that of the old Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Daysdays' 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 (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 form and substance to the Owner Participant.
(ii) . Prior to the consummation of 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 Valuesthe Basic Rent allocations, the Termination Values and EBO Price payable pursuant to the Lease and the EBO Amount 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 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 reasonably 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 and Make-Whole Premium Breakage Cost 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 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 6 months longer than the remaining weighted average life of the then outstanding CertificatesEquipment 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 Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 costsBreakage Cost, if any, and all other sums due and owing on the Certificates Equipment Notes payable under 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 (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 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;
(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 Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass pass-through certificates, the sole underwriter or the manager or co-co- manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass pass-through certificates (such as Prohibited Transaction Exemption 89-88 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, 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 (which may be in the form of a deemed representation) 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 from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding (or such pass-through certificates, as 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 or Section 4975 of the Codecase may be). 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. ; and
(vii) The Lessee shall indemnify the Owner Participant pursuant to, pay all costs and to the extent provided for, under Sections 8 expenses (including legal fees and 9 hereof for Taxes and Expenses resulting from disbursements) incurred in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA proposed 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofactually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee The Issuer may, at any time after the third anniversary direction of the Delivery DateHolders of at least 662/3% of the Outstanding Principal Balance of the Class F Notes, request effect a refinancing of the Owner Participant to participate in up to two Offered Notes (2) refinancings 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 during Refinancing Price to the Basic Term Holders of the Offered Notes and other Persons entitled thereto (such Refinancing Date to be specified in a "notice to be delivered to the Issuer at least 10 Business Days prior to such Refinancing Date). To effect a Refinancing", the Issuer shall deposit in the Note Distribution Account by no later than 1:00 p.m. (New York City time) provided that on the date of such applicable Refinancing no Payment Default, Bankruptcy Default or Event of Default shall have occurred and be continuing. Such Date an amount equal to the Refinancing may be placed in either the private or public markets in the United States or outside the United States Price and shall be denominated in United States dollars or any other currency provided that there is no foreign currency risk 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 comply with the Lessee as to the terms provisions of any such this Section 10.03 and Section 10.04.
(b) Any Refinancing transaction (including the terms of any debt to shall be issued permitted only in connection with an issuance of additional notes (such refinancing notes, the “Replacement Notes”), the proceeds of which will be used to fully prepay all Classes of Offered Notes. Upon receipt of a notice of Refinancing, the Servicer will cause the Issuer to issue and the documentation Indenture Trustee shall, upon receipt of an Issuer Order, authenticate and deliver Replacement Notes having the terms, priorities and conditions set forth in a supplemental indenture to be executed in connection therewith). Without the consent Indenture approved by the Holders of at least 662/3% of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements Outstanding Principal Balance of the Owner Participant or any Affiliate thereofClass F Notes and approved by the Servicer. 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 each No Refinancing shall be permitted hereunder unless, after giving effect thereto, the same as Offered Notes shall be prepaid in full. The issue of 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) Replacement Notes, and the final maturity prepayment of the new Certificates shall Offered Notes, will be no later than that contingent on receipt by the Issuer of sufficient funds from the issuance of the old Certificates.
(i) Notwithstanding anything herein Replacement Notes to prepay in full the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 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 Offered Notes and the Owner Participant shall have determined pay certain other amounts by payment 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.
(ii) Prior to the consummation of 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 full 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 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 The portion of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out Refinancing Price constituting payment of any such Refinancing transaction.
(d) Without the prior written consent principal of the Owner Participant, which consent may Offered Notes shall be withheld distributed to Noteholders 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 accordance with Section 7.05(b) of the then outstanding Certificates.
(e) Each party agrees to take or cause to be taken, at the Lessee's sole cost Sale and expense, all action reasonably requested by 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, Servicing Agreement and all other sums due and owing on the Certificates payable under 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which included in the reasonable judgment of the Owner Participant are necessary for such Refinancing Price 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 be distributed in this accordance with 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) 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 or individual retirement account, which is subject to Section 4975(c7.05(b) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 exemption from the U.S. Department of Labor with respect to their purchase Sale 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofServicing Agreement.
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, at on any time date on or after the third fifth anniversary of the Delivery DateDate (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 two (2) refinancings in whole but not in part, of the Certificates during Equipment Notes prior to the end of 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 any other currency provided that there is no foreign currency risk to the Owner Participant, Dollars and shall not materially adversely affect be on terms 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 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 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 each 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) and the final maturity of the new Certificates shall be no later than that of the old Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Daysdays' 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 (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 form and substance to the Owner Participant.
(ii) . Prior to the consummation of 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 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 reasonably 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 and Make-Whole Premium Amount 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 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 6 months longer than the remaining weighted average life of the then outstanding CertificatesEquipment 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 Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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 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;
(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 Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass pass-through certificates, the sole underwriter or the manager or co-co- manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass pass-through certificates (such as Prohibited Transaction Exemption 89-88 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, 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 (which may be in the form of a deemed representation) 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 from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding (or such pass-through certificates, as 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 or Section 4975 of the Codecase may be). 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. ; and
(vii) The Lessee shall indemnify the Owner Participant pursuant to, pay all costs and to the extent provided for, under Sections 8 expenses (including legal fees and 9 hereof for Taxes and Expenses resulting from disbursements) incurred in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA proposed 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofactually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during the Basic Term (a "Refinancing") provided that on the date of such The 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 been consummated, or public markets in the United States or outside the United States and shall be denominated in United States dollars or any other currency provided that there is no foreign currency risk to consummated substantially concurrently with the Owner Participantfunding under the Term Facility, 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 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 consent of the Owner Participant, the prospectus and other offering materials relating to 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 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.
(i) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant Administrative Agent shall have received at least 15 Business Days' prior written notice of the closing date of such Refinancingcustomary release, the Owner Participant shall have been provided such longer period required for a reasonable opportunity to review the relevant discharge, and termination 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.
(ii) Prior to evidencing the consummation of 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 Leasethereof. 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, to the Owner Participant shall have no obligation to proceed with extent any Refinancing transaction as contemplated by this Section 15.01 unless security interest in any Collateral is not or cannot be provided and/or perfected on 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 Closing Date (other than the obligation to pay principal pledge and interest in respect perfection of the refinanced indebtedness), cost or expense security interests in (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or x) the certificated capital stock held by the Loan Parties (other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out than a pledge of any such Refinancing transaction.
(d) Without the prior written consent certificate for any person that is a member of the Owner ParticipantTarget if such certificate has not been made available to Holdings at least two Business Days prior to the Closing Date, so long as Holdings used commercially reasonable efforts to procure delivery thereof, it being agreed that any such certificate may instead be delivered within five Business Days after the Closing Date) (or otherwise pursuant to arrangements and timing to be agreed by the Administrative Agent in its reasonable discretion) and (y) other assets pursuant to which consent a lien may be withheld perfected by the filing of a financing statement under the UCC with the Secretary of State (or other applicable filing office) in the applicable jurisdiction of organization of the Loan Parties) cannot be provided after your use of commercially reasonable efforts to do so, then the delivery and/or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but shall be required to be delivered within 90 days after the Closing Date (or otherwise pursuant to arrangements and timing to be mutually agreed by the Administrative Agent in its sole reasonable 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, at the Lessee's sole cost and expense, all action reasonably requested by 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 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). This paragraph, and the Certificates then outstanding provisions herein, shall be referred to as the “Limited Conditionality Provisions”. For purposes of determining whether the conditions specified in this Section 4.01 have been made satisfied on the Closing Date, by funding the Lessee;
(iii) Such party Loans hereunder, the Administrative Agent, the Collateral Agent and each Lender that has executed this Agreement on the Closing Date shall be deemed to have received such opinions of counsel (includingconsented to, without limitationapproved or accepted, an opinion received or to be satisfied with, each document or other matter required hereunder to be consented to or approved by the Owner Participant from independent tax counsel reasonably or acceptable or satisfactory to the Lessee that Administrative Agent, the Collateral Agent or such Refinancing shall not result in any adverse tax consequences to such Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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 ParticipantLender, 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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 case 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 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofbe.
Appears in 1 contract
Refinancing. Borrower shall not consent to or permit a refinancing of the Mortgage Loan unless it obtains the prior consent of Lender, provided that Lender shall consent to a refinancing in full of the Mortgage Loan if, after considering the following factors, Lender determines in its reasonable discretion that such factors have been satisfied:
(a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during the Basic Term (a "Refinancing") provided that on the date of such Refinancing no Payment Default, Bankruptcy Default or Event of Default or event which with the giving of notice and/or lapse of time would constitute an Event of Default under this Agreement shall have occurred and be continuing. Such Refinancing may be placed ;
(b) the new mortgage loan ("New MORTGAGE LOAN") shall have (i) an interest rate that is no higher than the then current interest rate for the Mortgage Loan, as determined by Lender in either the private or public markets in the United States or outside the United States its sole discretion (and shall be denominated in United States dollars or any other currency provided provide for an interest rate cap substantially identical to the Interest Rate Protection Agreement), (ii) a principal balance that there is no foreign currency risk more than the balance of the Mortgage Loan on the date of the refinancing, (iii) if the New Mortgage Loan provides for amortization, an amortization schedule that provides for repayment in monthly installments each of which is no greater than the monthly payments due under the Mortgage Note, and (iv) a maturity date that is no earlier than that provided for under the Mortgage Loan at the time of the closing thereof;
(c) the terms of the New Mortgage Loan shall permit the Loan, shall provide the same express rights to Lender as the Owner Participant, Mortgage Loan and shall not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement conflict with the Lessee as to the terms of any such Refinancing transaction the Loan and the new mortgage lender shall enter into an intercreditor agreement with Lender no less favorable to Lender than the Intercreditor Agreement;
(including d) no portion of the terms of any debt to Property may not be issued transferred in connection with such refinancing except pursuant to a Sale or Pledge made in accordance with Article VII of this Agreement;
(e) Borrower shall pay all costs and the documentation to be executed expenses of Lender incurred in connection therewith). Without the consent of the Owner Participant, the prospectus and other offering materials relating to 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 offeringrefinancing, 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 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.
(i) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 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.
(ii) Prior to the consummation of 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 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 and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out expenses 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, at the LesseeLender's sole cost and expense, all action reasonably requested by 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 the Indenturecounsel;
(iif) Payment in full of all other amounts then due Borrower shall execute and owing by the Lessee under deliver such amendments to this Agreement, the Indenture, the Lease, the Trust Agreement, Agreement and the Certificates then outstanding shall have been made by the Lessee;other Loan Documents as Lender may request in connection with such New Mortgage Loan; and
(iiig) Such party Lender shall have received such settlement statements, pay-off letters, opinions of 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), certificates and other documents documentation as it may shall reasonably request, each request in form and substance reasonably satisfactory to connection with such party;
(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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 refinancing. Upon the satisfaction of the relevant conditions of such an exemption foregoing, Borrower may permit or (2) their purchase and holding consent to a refinancing of the Refinancing loan certificates will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of Mortgage Loan, whereupon such New Mortgage Loan shall be deemed to be 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofMortgage Loan as defined herein.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant Participants to participate in up to two (2) refinancings three refinancings, in whole but not in part, of the Certificates during prior to the end of the Basic Term (a "Refinancing") provided that on the date of ), provided, that, such Refinancing no Payment Default, Bankruptcy Default or Event may not occur prior to the fifth anniversary of Default shall have occurred and be continuingthe Delivery Date. Such Refinancing Refinancings 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 provided that 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 and the documentation to be executed in connection therewith). Without the consent of the applicable Owner Participant, the prospectus and other offering materials relating to 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 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 Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the each Owner Participant shall have received at least 15 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 (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 such Owner Participant.
(ii) . Prior to the consummation of 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 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 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 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) 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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 Participants), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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 Payment Default, Bankruptcy Default or Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;; and
(viii) In the event The documentation relating to such Refinancing shall permit 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 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 place the Refinancing loan certificates with an ERISA Plan only Plan. The Lessee shall not indemnify any Owner Participant, or any of 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 either (A) if such placement is in the form of pass through certificates, 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 a prohibited transaction an exemption from the U.S. Department prohibited transaction rules under Section 406 of Labor ERISA and Section 4975 of the Code with respect to pass through certificates (certificates, such as Prohibited Transaction Exemption 8990-88 24 or any other comparable exemption) , unless such exemption is not available 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 is not valid with respect to 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 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 or Section 4975 of the Code. The reliance on any If such exemption will is not be conditional on available or is not valid, then the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans. The Lessee shall indemnify the such Owner Participant pursuant to, and to the extent provided for, under Sections Articles 8 and 9 hereof for Taxes and Expenses resulting from arising under or in connection with 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, 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), resulting from such indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofplacement.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two three refinancings (2including the refinancing contemplated by this Agreement on the Refunding Date) refinancings in whole but not in part, of the Certificates during prior to the end of 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 Refinancings 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 provided that 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 and the documentation to be executed in connection therewith). Without the consent of the Owner Participant, the prospectus and other offering materials relating to 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 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 Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 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 (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.
(ii) . Prior to the consummation of 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 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 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) 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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 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) In the event the Lessee 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 only if either (A) if such placement is in the form of pass through certificates, 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 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 or holders of pass through certificate holders, as the case may be, 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 pass through certificates, as the case may be, and, if such purchasers or holders 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 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 holding of the Refinancing loan certificates or pass through certificates, as the case may be, 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 or pass through certificates, as the case may be, will not constitute a non-exempt 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. The If the exemption referred to in this paragraph (viii) is not valid or applicable in any respect to the purchase and holding of the Refinancing loan certificates or pass through certificates, as the case may be, or if the representation in this paragraph (viii) that such purchase and holding will not constitute a non-exempt prohibited transaction is not correct, whichever is applicable, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections Articles 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii8.01(b)(xii) and 9.01(b)(ix) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal 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, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during prior to the end of 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 Refinancings 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 provided that 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 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 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 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 Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Daysdays' 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 (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.
(ii) , nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of 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 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 and Make-Whole 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) 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The 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, or if the representation in clause (B) of this paragraph (viii) that such purchase and holding will not constitute a non-exempt prohibited transaction is not correct, whichever is applicable, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii8.01(b)(xii)(A) and 9.01(b)(ix(B) and 9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal 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, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two refinancings (2) refinancings including the refinancing contemplated by this Agreement on the Refunding Date), in whole but not in part, of the Certificates during prior to the end of the Basic Term (each 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 Refinancings 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 any other currency provided that there is no foreign currency risk dollars, and shall be on terms reasonably satisfactory to the Owner Participant, 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 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 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 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 Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Days' 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.
(ii) . Prior to the consummation of 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 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 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) 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, at the Lessee's sole cost and expense, all action reasonably requested by the Lesseeaction, 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 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 (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 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;
(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 Payment Default, Bankruptcy Default or Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;; and
(viii) In the event The documentation relating to such Refinancing shall permit 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 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 place the Refinancing loan certificates with an ERISA Plan only 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 Section 8 hereof, or Expenses, within the meaning of 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 either (A) if such placement is in the form of pass through certificates, 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 a prohibited transaction an exemption from the U.S. Department prohibited transaction rules under Section 406 of Labor ERISA and Section 4975 of the Code with respect to pass through certificates (certificates, such as Prohibited Transaction Exemption 8990-88 24 or any other comparable exemption) , unless such exemption is not available or (B) purchasers of the is not valid with respect to such Refinancing loan certificates provide a representation (which may be in at 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 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 time 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 or Section 4975 of the Codetransaction. The reliance on any If such exemption will is not be conditional on available or is not valid, then the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections Section 8 and 9 hereof for Taxes and Expenses resulting from arising under or in connection with 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, provided, however, resulting from such placement.
(e) Any debt to be issued in connection with a Refinancing shall have an interest rate that if is fixed for the Lessee shall fail to obtain either entire term of the representations set forth in clause (A) or (B) of this paragraph (viii), such indemnity debt and shall not be subject to include any debt whose fixed interest rate is reset at any time during the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofterm of such debt.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the an Owner Participant to participate in up to two (2) refinancings one refinancing in whole but not in part, of the Certificates during prior to the end of 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 any other currency provided that there is no foreign currency risk to the Owner Participant, and shall not materially adversely affect be on terms 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 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 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 each 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) and the final maturity of the new Certificates shall be no later than that of the old Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Daysdays' 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 (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, if an additional indemnity is then provided by the Lessee as the result of such Refinancing and the Owner Participant or the Indenture Trustee 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 such Person nor would such transaction materially and adversely affect the rights and obligations of Owner Participant.
(ii) . Prior to the consummation of 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 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 and Make-Whole Premium 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) 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 three months than the remaining weighted average life of the then outstanding Certificates.
, or (e3) Each party agrees to take or cause the date of maturity of such indebtedness to be taken, at later than the Lessee's sole cost and expense, all action reasonably requested by the Lessee, including, without limitation, the execution and delivery date 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 maturity 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofbeing refinanced.
Appears in 1 contract
Sources: Participation Agreement (Atlantic Coast Airlines Inc)
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two three refinancings (2including the refinancing contemplated by this Agreement on the Refunding Date) refinancings in whole but not in part, of the Certificates during prior to the end of 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 Refinancings 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 provided that 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 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 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 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 Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Days' 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 (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.
(ii) , nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of 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 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 and Make-Whole 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) 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 Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan 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 Loan Certificates.
, or (e3) Each party agrees to take or cause the date of maturity of such indebtedness to be taken, at later than the Lessee's sole cost and expense, all action reasonably requested by the Lessee, including, without limitation, the execution and delivery date 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 maturity of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Loan 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofbeing refinanced.
Appears in 1 contract
Refinancing. Borrower and its Subsidiaries shall have effected (a) Subject to or will, on the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Restatement Date, request effect) the Owner Participant to participate repayment in up to two (2) refinancings in whole but not in part, full of the Certificates 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 any other currency provided that there is no foreign currency risk 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 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 consent of the Owner Participant, the prospectus and other offering materials relating to 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 each Refinancing shall be the same as the aggregate principal amount all Loans 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.
(i) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 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.
(ii) Prior to the consummation of 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 First Amended and Restated Credit Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with 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 and Make-Whole 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) 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, at the Lessee's sole cost and expense, all action reasonably requested by the Lessee, including, without limitation, the execution and delivery termination of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to all outstanding commitments in 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 the Indenture;
(ii) Payment in full of all other amounts then due First Amended and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, Restated Credit Agreement on terms and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel conditions and pursuant to documentation reasonably satisfactory to the Lessee that such Refinancing Administrative Agent, and Arrangers shall not result in any adverse tax consequences to such Owner Participant)have received (or will, certificates and other documents as it may reasonably requeston the Restatement Date, each in form and substance receive) evidence thereof reasonably satisfactory to Arrangers and a “pay-off” letter or letters reasonably satisfactory to Arrangers with respect to such party;
Loans, as Arrangers shall have reasonably requested. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Restatement Date. Notwithstanding anything to the contrary contained in this Agreement or the other Credit Documents, the parties hereto acknowledge and agree that (ivi) All authorizationsthe delivery of any document or instrument, approvals and consents which the taking of any action, set forth on Schedule 5.15 hereto shall not be a condition precedent to the Restatement Date but shall be required to be satisfied after the Restatement Date in accordance with Schedule 5.15 hereto, and (ii) all conditions precedent and representations, warranties, covenants, Events of Default and other provisions contained in this Agreement and the other Credit Documents shall be deemed modified as set forth on Schedule 5.15 hereto (and to permit the taking of the actions described therein within the time periods required therein, rather than as elsewhere provided in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
Credit Documents); provided that (vx) The Lessee shall have provided or agreed to provide to the Owner Participantextent any representation and warranty would not be true because the actions set forth therein were not taken on the Restatement Date, as Supplemental Rent under the Lease, sufficient funds respective representation and warranty shall be required to pay any breakage costs, Make-Whole Premium be true and any other amounts due under correct in all material respects at the Indenture;
time the respective action is taken (vior was required to be taken) The satisfaction or waiver by each other party in accordance with the provisions of Schedule 5.15 and (y) all representations and warranties relating to this Agreement of the conditions Collateral Documents set forth in this Section 15.01 Schedule 5.15 shall be required 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 true immediately after giving effect the actions required to such Refinancing;
be taken by Schedule 5.15 have been taken (viii) 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 were required 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"be taken), the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereof.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, 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, at Affordable Units or place any time after additional financing on the third anniversary Property without the advance written consent of the Delivery DateMayor. Notwithstanding the foregoing sentence, request Owner shall have the Owner Participant right, from time-to-time, to participate in up to two (2) refinancings in whole but not in part, of refinance the Certificates during the Basic Term Permanent Loan (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 any other currency provided that there is no foreign currency risk subject 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 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 consent of the Owner Participant, the prospectus and other offering materials relating to 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 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.
following conditions: (i) Notwithstanding anything herein the debt obtained pursuant to the contrary, no a Refinancing will be permitted unless the Owner Participant shall have received at least 15 Business Days' prior written notice not exceed eighty percent (80%) 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 value of the Code) for Property as determined by an appraisal conducted at Owner’s expense by an MAI appraiser selected by Owner’s lender (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.
(ii) Prior to the consummation of 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 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 and Make-Whole 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) 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, at the Lessee's sole cost and expense, all action reasonably requested by 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 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
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 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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofdays following written request therefor.
Appears in 1 contract
Sources: Owner Participation Agreement
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two three refinancings (2) refinancings including the refinancing contemplated by this Agreement on the Refunding Date), in whole but not in part, of the Certificates during prior to the end of the Basic Term (a "Refinancing") provided that ), provided, that, except in connection with the Refinancing contemplated by this Agreement on the date of Refunding Date, such Refinancing no Payment Default, Bankruptcy Default or Event may not occur prior to the fifth anniversary of Default shall have occurred and be continuingthe Refunding Date. Such Refinancing Refinancings 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 provided that 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 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 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 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 Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 15 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 (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.
(ii) . Prior to the consummation of 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 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 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) 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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 Payment Default, Bankruptcy Default or no Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) In 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 or individual retirement accountplan, 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through certificates (such as Prohibited Transaction Exemption 8990-88 24 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 exemption from the U.S. Department of Labor is available 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) that their purchase and holding of the Refinancing loan certificates will not constitute a non-exempt 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. The 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, or if the representation in clause (B) of this paragraph (viii) that such purchase and holding will not constitute a prohibited transaction is not correct, whichever is applicable then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses resulting from any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(14975(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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereof.
Appears in 1 contract
Refinancing. (a) Subject On or prior to the Initial Borrowing Date, the total commitments in respect of the Existing Credit Agreement shall have been terminated, and all loans and notes with respect thereto shall have been repaid in full, together with interest thereon, all letters of credit issued thereunder and foreign currency contracts contemplated thereunder shall have been terminated and all other amounts (including premiums) owing pursuant to the Existing Credit Agreement shall have been repaid in full and all documents in respect of the Existing Credit Agreement and all guarantees with respect thereto shall have been terminated and be of no further force and effect.
(b) On or prior to the Initial Borrowing Date, the Borrower shall have repurchased, retired or redeemed all of the outstanding Existing Subordinated Notes for cash, in accordance with their terms, or on such other terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates 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 as 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 any other currency provided that there is no foreign currency risk satisfactory to the Owner ParticipantAgent and the Required Banks, and shall not materially adversely affect all securities and note purchase agreements, purchase or sale agreements or other agreements pursuant to which the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement Existing Subordinated Notes were issued and all guaranties and security documents 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 and the documentation to be executed in connection therewith). Without the consent of the Owner Participant, the prospectus and other offering materials relating to 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 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.
(i) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 15 Business Days' prior written notice of the closing date of such Refinancing, the Owner Participant 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 (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.
(ii) Prior to the consummation of 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 Indentureeffect.
(c) Notwithstanding On the foregoingInitial Borrowing Date, the Owner Participant creditors in respect of the Indebtedness to be Refinanced shall have no obligation to proceed with any Refinancing transaction terminated and released all security interests and Liens on the assets owned by the Borrower and its Subsidiaries. The Agent shall have received such releases of security interests in and Liens on the assets owned by the Borrower and its Subsidiaries as contemplated may have been requested by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement Agent, which releases shall be in form and substance reasonably satisfactory to the Agent. Without limiting the foregoing, there 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 themits Subsidiaries in connection with the security interests created with respect to the Indebtedness to be Refinanced and the documentation related thereto, for (ii) termination or reassignment of any liabilitysecurity interest in, obligation or Lien on, any patents, trademarks, copyrights, or similar interests of the Borrower or any of its Subsidiaries on which filings have been made, (other than iii) terminations of all mortgages, leasehold mortgages, deeds of trust and leasehold deeds of trust created with respect to property of the obligation Borrower or any of its Subsidiaries, in each case, to pay principal and interest secure the obligations in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole 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) 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 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, at the Lessee's sole cost and expenseRefinanced, all action reasonably requested by 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
the Agent, (iv) All authorizationstermination notices and agreements with respect to all lockbox, approvals warehousing, bailee and consents similar agreements, duly acknowledged by all counterparties thereto, all of which shall be in form and substance reasonably satisfactory to the Agent, and (v) all collateral owned by the Borrower or any of its Subsidiaries in the reasonable judgment possession of any of the Owner Participant are necessary for such Refinancing creditors in respect of the 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 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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofSubsidiary.
Appears in 1 contract
Sources: Credit Agreement (Labtec Inc /Ma)
Refinancing. Borrower shall not consent to or permit a refinancing of the Mortgage Loan unless it obtains the prior consent of Lender, provided that Lender shall consent to a refinancing in full of the Mortgage Loan if, after considering the following factors, Lender determines in its reasonable discretion that such factors have been satisfied:
(a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during the Basic Term (a "Refinancing") provided that on the date of such Refinancing no Payment Default, Bankruptcy Default or Event of Default or event which with the giving of notice and/or lapse of time would constitute an Event of Default under this Agreement shall have occurred and be continuing. Such Refinancing may be placed ;
(b) the new mortgage loan ("NEW MORTGAGE LOAN") shall have (i) an interest rate that is no higher than the then current interest rate for the Mortgage Loan, as determined by Lender in either the private or public markets in the United States or outside the United States its sole discretion (and shall be denominated in United States dollars or any other currency provided provide for an interest rate cap substantially identical to the Interest Rate Protection Agreement), (ii) a principal balance that there is no foreign currency risk more than the balance of the Mortgage Loan on the date of the refinancing, (iii) if the New Mortgage Loan provides for amortization, an amortization schedule that provides for repayment in monthly installments each of which is no greater than the monthly payments due under the Mortgage Note, and (iv) a maturity date that is no earlier than that provided for under the Mortgage Loan at the time of the closing thereof;
(c) the terms of the New Mortgage Loan shall permit the Loan, shall provide the same express rights to Lender as the Owner Participant, Mortgage Loan and shall not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement conflict with the Lessee as to the terms of any such Refinancing transaction the Loan and the new mortgage lender shall enter into an intercreditor agreement with Lender no less favorable to Lender than the Intercreditor Agreement;
(including d) no portion of the terms of any debt to Property may not be issued transferred in connection with such refinancing except pursuant to a Sale or Pledge made in accordance with Article VII of this Agreement;
(e) Borrower shall pay all costs and the documentation to be executed expenses of Lender incurred in connection therewith). Without the consent of the Owner Participant, the prospectus and other offering materials relating to 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 offeringrefinancing, 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 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.
(i) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 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.
(ii) Prior to the consummation of 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 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 and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out expenses 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, at the LesseeLender's sole cost and expense, all action reasonably requested by 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 the Indenturecounsel;
(iif) Payment in full of all other amounts then due Borrower shall execute and owing by the Lessee under deliver such amendments to this Agreement, the Indenture, the Lease, the Trust Agreement, Agreement and the Certificates then outstanding shall have been made by the Lessee;other Loan Documents as Lender may request in connection with such New Mortgage Loan; and
(iiig) Such party Lender shall have received such settlement statements, pay-off letters, opinions of 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), certificates and other documents documentation as it may shall reasonably request, each request in form and substance reasonably satisfactory to connection with such party;
(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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 refinancing. Upon the satisfaction of the relevant conditions of such an exemption foregoing, Borrower may permit or (2) their purchase and holding consent to a refinancing of the Refinancing loan certificates will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of Mortgage Loan, whereupon such New Mortgage Loan shall be deemed to be 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofMortgage Loan as defined herein.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two (2) refinancings one refinancing, in whole but not in part, of the Certificates during prior to the end of 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 provided that 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 any 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 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 each 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) and the final maturity of the new Certificates shall be no later than that of the old Certificates).
(ib) Notwithstanding anything herein to the contrary, no the Refinancing will not be permitted unless the Owner Participant shall have received at least 15 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 (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.
(iiParticipant and has not received the opinion referred to in the proviso to Section 15.01(d)(iii) hereof. Prior to the consummation of any 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 any 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 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 (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), certificates and other documents as it may unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably request, each satisfactory in form and substance reasonably satisfactory to the Owner Participant, provided, however, that if such partyindemnity 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 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) In the event The documentation relating to such Refinancing shall permit 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 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 place the Refinancing loan certificates with an ERISA Plan only 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 either (A) if such placement is in the form of pass through certificates, 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 a prohibited transaction an exemption from the U.S. Department prohibited transaction rules under Section 406 of Labor ERISA and Section 4975 of the Code with respect to pass through certificates (certificates, such as Prohibited Transaction Exemption 8990-88 24 or any other comparable exemption) , unless such exemption is not available 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 is not valid with respect to 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 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 or Section 4975 of the Code. The reliance on any If such exemption will is not be conditional on available or is not valid, then the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections Articles 8 and 9 hereof for Taxes and Expenses resulting from arising under or in connection with 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, provided, however, that if the resulting from such placement; and
(ix) The Lessee shall fail to obtain either pay all costs and expenses (including legal fees (including allocated time charges of the representations set forth internal counsel)) incurred in clause (A) connection with any proposed or (B) of this paragraph (viii), such indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofactually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two (2) refinancings three refinancings, in whole but not in part, of the Certificates during prior to the end of the Basic Term (a "Refinancing") provided that on the date of ), provided, that, such Refinancing no Payment Default, Bankruptcy Default or Event may not occur prior to the fifth anniversary of Default shall have occurred and be continuingthe Refunding Date. Such Refinancing Refinancings 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 provided that 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 and the documentation to be executed in connection therewith). Without the consent of the applicable Owner Participant, the prospectus and other offering materials relating to 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 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 Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 15 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 (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.
(ii) . Prior to the consummation of 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 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 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) 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereof.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two three refinancings (2) refinancings including the refinancing contemplated by this Agreement on the Refunding Date), in whole but not in part, of the Certificates during prior to the end of the Basic Term (a "Refinancing") provided that ), provided, that, except in connection with the Refinancing contemplated by this Agreement on the date of Refunding Date, such Refinancing no Payment Default, Bankruptcy Default or Event may not occur prior to the fifth anniversary of Default shall have occurred and be continuingthe Refunding Date. Such Refinancing Refinancings 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 provided that 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 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 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 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 Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 15 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 (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.
(ii) . Prior to the consummation of 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 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 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) 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, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, 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 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 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereof.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may, at any time after the third anniversary of the Delivery Date, may request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during Equipment Notes prior to the end of 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 any other currency provided that there is no foreign currency risk to the Owner Participant, Dollars and shall not materially adversely affect be on terms 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 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 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 each 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) and the final maturity of the new Certificates shall be no later than that of the old Certificatesrefinanced.
(ib) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 Business Daysdays' 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 (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 form and substance to the Owner Participant.
(ii) . Prior to the consummation of 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 Valuesthe Basic Rent allocations, the Termination Values and EBO Price payable pursuant to the Lease and the EBO Amount 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 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 reasonably 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 and Make-Whole 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) 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 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 6 months longer than the remaining weighted average life of the then outstanding CertificatesEquipment 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 Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken, at the Lessee's sole cost and expense, taken all action reasonably requested by the Lesseeaction, 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 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 (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 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;
(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 Specified Default shall have occurred and be continuing exist or would occur immediately after giving effect to such Refinancing;
(viiivi) 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 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 with an ERISA Plan only if either (A) if such placement is in the form of pass pass-through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass pass-through certificates (such as Prohibited Transaction Exemption 89-89- 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, 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 (which may be in the form of a deemed representation) 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 from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding (or such pass-through certificates, as 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 or Section 4975 of the Codecase may be). 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. ; and
(vii) The Lessee shall indemnify the Owner Participant pursuant to, pay all costs and to the extent provided for, under Sections 8 expenses (including legal fees and 9 hereof for Taxes and Expenses resulting from disbursements) incurred in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA proposed 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, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofactually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to The Tenant may enter into a permanent Fee Mortgage loan and may refinance the terms and conditions of this Section 15.01, the Lessee may, at any time after the third anniversary of the Delivery Date, request the Owner Participant to participate in up to two (2) refinancings in whole but not in part, of the Certificates during the Basic Term (a "Refinancing") permanent Fee Mortgage periodically 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 any other currency provided that there is no foreign currency risk 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 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 consent of the Owner Participant, the prospectus and other offering materials relating to 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 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.following conditions are met:
(i) Notwithstanding anything herein The new permanent Fee Mortgage must provide for a sufficient principal amount to pay all the contrary, no Refinancing will be permitted unless the Owner Participant shall have received at least 15 Business Days' prior written notice expenses 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 refinancing 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 unpaid principal balance of the Code) for which (then existing construction or permanent Fee Mortgage. The existing Fee Mortgage must be paid in full at the case funding of such loss, expense the new permanent Fee Mortgage. The principal of the new permanent Fee Mortgage shall not exceed the lesser of $______________ or tax) it has not been or will not have been indemnified 80% of the then fair market value of the improvements built on the Premises by Tenant in connection accordance with such Refinancing by this lease. Such value shall be determined using the Lessee procedure set forth in a manner reasonably satisfactory to the Owner Participantsection 16.1 below.
(ii) Prior to The holder or mortgagee of the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee new permanent Fee Mortgage must be an institutional lender.
(iii) The new permanent Fee Mortgage 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 provide for self-liquidation by its maturity date as a result of the Refinancing in accordance with Section 3.04 application of the Leaseamortization payments provided for in it, shall not have a term longer than 15 years, the remaining Lease Term, or the useful life of the improvements financed, whichever is the shorter period, and thereafter the amounts set forth shall not bear interest at a rate in such schedule shall become the amounts payable under the Lease. Upon the consummation excess of the Refinancing, the evidence then prevailing rate of indebtedness issued pursuant to the Refinancing interest on similar institutional financing. Such loan principal and interest shall be considered "Certificates" for purposes amortized either in equal installments, payable no less frequently than quarterly, or else in quarterly or more frequent installments proportionately larger in the earlier periods of this Agreement, the Lease and loan than in the Indenturelater periods.
(civ) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with 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 and Make-Whole 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) 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, at the Lessee's sole cost and expense, all action reasonably requested by 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 The Tenant shall be subject to full recourse on any such permanent financing or, if the satisfaction of each lender is willing to make a nonrecourse loan, shall be subject to a nonrecourse provision no less protective 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 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 (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), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(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) 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 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 with an ERISA Plan only if either (A) if such placement is lender than substantially in the form of pass through Exhibit E. In the event of either a full recourse or no recourse loan, the principals of Tenant named as Guarantors in section 1.1(o) shall be Personal Obligors under a separate guarantee to the lender at least as to any matter for which Borrower would be liable, as described in such provisions. If the new permanent Fee Mortgage complies with the above conditions, the Landlord shall join in the execution, acknowledgment, and delivery of the new first Fee Mortgage for the purpose of subjecting its interests in the Premises to the lien of it, and the permanent Fee Mortgage shall cover and be a lien on the entire interest of Landlord in the Premises. Each shall also execute, acknowledge, and deliver all other agreements, certificates, and papers that are necessary or desirable in order to accomplish the sole underwriter replacement or refinancing of the existing permanent Fee Mortgage. However, the Landlord shall incur no personal liability for the payment of any portion of the principal amount secured by any permanent Fee Mortgage 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 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 interest on a prohibited transaction 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 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. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses 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 withit, or the holding payment 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 ERISAother sum that may be secured or required by it, or a disqualified personfor the performance of any term, within the meaning agreement, covenant, condition, or provision of Section 4975 of the Code, 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 indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereofit.
Appears in 1 contract
Sources: Ground Lease Agreement