Refunding. So long as no Termination Event or Incipient Termination Event shall be in existence, and all Funding Dates have been completed and subject to satisfaction of the terms and conditions set forth in this Article XII and in Section 2.12 of the Indenture, the Co-Lessee shall have the right to request the Owner Participant to effect, and the Owner Participant, the Owner Trustee and the Indenture Trustee will cooperate to effect, an optional prepayment of all, but not less than all, of the Notes pursuant to Section 2.12 of the Indenture as part of a refunding or refinancing, on the terms set forth in this Article XII and such Section 2.12 (such refunding or refinancing, a "Refunding"); provided, that the Lessee shall have the right to so request only one Refunding during the term of the Notes. In connection with a refunding or refinancing: (a) there shall be no material change in the Operative Documents except to the extent provided in clause (c) and for the inclusion, if any, of additional covenants upon the Co-Lessee which are acceptable to the Co-Lessee, and specifically, there shall be no change in the Operative Documents adverse to the Owner Participant or the Owner Trustee, in any such Person's reasonable judgment, including the provisions of the Indenture providing the Owner Trustee with rights in the event of an Indenture Default or an Indenture Event of Default; (b) the Lessee, the Co-Lessee, the Owner Participant, the Owner Trustee, the Indenture Trustee, and any other appropriate parties will enter into an agreement, in form and substance satisfactory to such Persons, providing for (i) the issuance and sale by the Owner Trustee on the date specified in such agreement (for the purposes of this Article XII, the "Refunding Date") of debt securities in an aggregate principal amount (in the lawful currency of the U.S.) equal to the aggregate outstanding principal amount of the Notes on the Refunding Date (the "Replacement Notes"), (ii) payments by the Co-Lessee to the Person or Persons entitled thereto of all other amounts, in respect of accrued interest, and Make Whole Premium Amount, if any, payable on such Refunding Date and all other amounts due and owing to the Noteholders under the Operative Documents, and (iii) such other provisions as are reasonably acceptable to the Owner Participant, the Owner Trustee, the Indenture Trustee, the Lessee and the Co-Lessee; (c) the Lessee and the Owner Trustee will amend the Lease to provide that Rent payable in respect of the period from and after the Refunding Date shall be recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred; provided, that the net present value of Rent shall be minimized to the extent consistent therewith, and amounts payable in respect of Casualty Value, Termination Value and EBO Price from and after the Refunding Date shall be appropriately recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred (it being agreed that any recalculations pursuant to this clause (c) shall be performed in accordance with the requirements of Article X); (d) subject to subparagraph (a) above, the Owner Trustee will enter into an agreement not materially different from the Indenture to provide for the securing thereunder of the Replacement Notes issued by the Owner Trustee pursuant to this Article XII in like manner as the Notes refunded; (e) on the Refunding Date and as a condition precedent to such Refunding, the entire principal amount of Notes, together with accrued interest thereon, the Make Whole Premium Amount, if any, and all other sums due to the Lenders under the Operative Documents shall be prepaid or paid in accordance with Section 2.12 of the Indenture; (f) the Co-Lessee shall pay to the Owner Participant a Refunding fee in an amount equal to $25,000; (g) the Lessee, the Owner Participant, the Owner Trustee and the Indenture Trustee shall have received (i) such opinions of counsel as they may reasonably request concerning compliance with Applicable Law relating to the sale of securities and (ii) such other opinions of counsel and such certificates and other documents, each in form and substance satisfactory to them, as they may reasonably request in connection with the terms and conditions of this Article XII; (h) all necessary authorizations, Governmental Actions, approvals and consents in connection with such Refunding shall have been obtained; (i) as a result of such Refunding, the Equity Amount shall not increase or decrease; and
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Refunding. (a) So long as no Termination Event or Incipient Termination Event of Default has ---------- occurred and is continuing, the Owner Participant and the Owner Trustee each agree that (i) prepayment of the Certificates as contemplated by Section 6.02(B) of the Indenture shall be in existencemade only with the consent of the Lessee, and all Funding Dates have been completed and subject (ii) to satisfaction the extent that an optional prepayment of the Certificates is permitted by the Indenture, they will each cooperate with the Lessee to implement, in addition to other prepayments permitted or required by this Agreement or the Lease, not more than one refunding of the Certificates (including, without limitation, the execution, delivery and/or provision of any appropriate additional or modified amendment, representation, warranty, certificate, opinion or other document that may reasonably be requested by the Lessee or any other person in connection with such refunding and are reasonably satisfactory to, and in their judgment not adverse to the interests of, the Owner Participant and the Owner Trustee) at such interest rates and on such other terms as may be satisfactory to the Lessee and conditions at the expense of the Lessee, provided that (x) such refunding shall satisfy -------- the requirements set forth in this Article XII and in Section 2.12 3(e) of the IndentureLease, (y) the outstanding principal amount of the Certificates shall not be changed in any such refunding transaction and (z) all payments of Basic Rent and all payments relating to the Certificates shall always be U.S. dollar denominated. Notwithstanding anything herein to the contrary, no refunding will be permitted unless the Owner Participant shall have received at least 3 Business Days prior written notice of the closing date of such refunding, the CoOwner 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 refunding (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 (to the extent the original rent structure under the Lease complied with Revenue Procedures 75-21 and 75-28 and Section 467 of the Code on the Closing Date, it being understood that, to the extent that the original rent structure complied on the Closing Date with any grandfather or similar provisions in any regulations under Section 467 or other administrative pronouncement interpreting Section 467, such structure shall be deemed to have been in compliance with Section 467 on the Closing Date)) for which it has not been or will not have been indemnified by the Lessee in a manner satisfactory in all respects to the Owner Participant.
(b) The Lessee hereby agrees to pay on an after-tax basis all reasonable fees and out-of-pocket expenses (including without limitation, reasonable fees and expenses of counsel) incurred by the Owner Participant, the Owner Trustee, and the Indenture Trustee in connection with any refunding or amendment pursuant to this Section 20.
(c) The Lessee agrees that neither it nor any of its Affiliates shall at any time purchase or hold certificates issued pursuant to Section 20(a) hereof ("Refunding Certificates") other than Refunding Certificates scheduled to mature within the twelve month period beginning on the date of such purchase but in no event shall the Lessee and its Affiliates hold at any one time Refunding Certificates representing more than 5% of the Refunding Certificates then outstanding (including such Refunding Certificates held by the Lessee and its Affiliates). To the extent any installment of Basic Rent due is to be applied in redemption of outstanding Refunding Certificates, maturing on a Basic Rent payment date, the Lessee shall have the right but not the obligation to request either (i) deliver to the Indenture Trustee for cancellation, in payment of a like amount of Basic Rent, a principal amount of Refunding Certificates not exceeding the principal amount of Refunding Certificates maturing on such date or (ii) if such an optional redemption is permitted under the terms of any Refunding Certificate, have Refunding Certificates held by it in a principal amount not exceeding the principal amount of Refunding Certificate to be redeemed on such date redeemed in priority to all other Refunding Certificates.
(d) [Intentionally Omitted]
(e) In the case of a refunding involving a public offering of debt securities, (1) the offering materials (including any registration statement) for the refunding transaction shall describe the Owner Participant to effectand the Owner Trustee, and the terms of the transaction among the Owner Participant, the Owner Trustee and the Indenture Trustee will cooperate to effectLessee, an optional prepayment of all, but not less than all, of the Notes pursuant to Section 2.12 of the Indenture as part of a refunding or refinancing, on the terms set forth in this Article XII and such Section 2.12 (such refunding or refinancing, a "Refunding"); provided, that the Lessee shall have the right to so request only one Refunding during the term of the Notes. In connection with a refunding or refinancing:
(a) there shall be no material change in the Operative Documents except to the extent provided in clause (c) required by applicable United States federal and for the inclusionstate securities laws, if any, of additional covenants upon the Co-Lessee which are and such offering materials shall be otherwise reasonably acceptable to the Co-Lessee, Owner Participant and specifically, there shall be no change in the Operative Documents adverse Owner Trustee to the extent such materials describe the Owner Participant or the Owner Trustee, in any such Person's reasonable judgment, including Trustee or the provisions terms of the Indenture providing the Owner Trustee with rights in the event of an Indenture Default or an Indenture Event of Default;
(b) the Lessee, the Co-Lessee, the Owner Participant, the Owner Trustee, the Indenture Trustee, and any other appropriate parties will enter into an agreement, in form and substance satisfactory to such Persons, providing for (i) the issuance and sale by the Owner Trustee on the date specified in such agreement (for the purposes of this Article XII, the "Refunding Date") of debt securities in an aggregate principal amount (in the lawful currency of the U.S.) equal to the aggregate outstanding principal amount of the Notes on the Refunding Date (the "Replacement Notes"), (ii) payments by the Co-Lessee to the Person or Persons entitled thereto of all other amounts, in respect of accrued interest, and Make Whole Premium Amount, if any, payable on such Refunding Date and all other amounts due and owing to the Noteholders under the Operative Documents, and (iii) such other provisions as are reasonably acceptable to the Owner Participant, the Owner Trustee, the Indenture Trustee, the Lessee and the Co-Lessee;
(c) the Lessee and the Owner Trustee will amend the Lease to provide that Rent payable in respect of the period from and after the Refunding Date shall be recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred; provided, that the net present value of Rent shall be minimized to the extent consistent therewith, and amounts payable in respect of Casualty Value, Termination Value and EBO Price from and after the Refunding Date shall be appropriately recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred (it being agreed that any recalculations pursuant to this clause (c) shall be performed in accordance with the requirements of Article X);
(d) subject to subparagraph (a) above, the Owner Trustee will enter into an agreement not materially different from the Indenture to provide for the securing thereunder of the Replacement Notes issued by the Owner Trustee pursuant to this Article XII in like manner as the Notes refunded;
(e) on the Refunding Date and as a condition precedent to such Refunding, the entire principal amount of Notes, together with accrued interest thereon, the Make Whole Premium Amount, if any, and all other sums due to the Lenders under the Operative Documents shall be prepaid or paid in accordance with Section 2.12 of the Indenture;
(f) the Co-Lessee shall pay to the Owner Participant a Refunding fee in an amount equal to $25,000;
(g) the Lessee, transaction among the Owner Participant, the Owner Trustee and the Lessee, but such offering materials shall not include any financial information about the Owner Participant and (2) the structure of the offering shall be reasonably satisfactory to the Owner Participant from a tax point of view.
(f) No refunding pursuant to this Section 20 shall permit any floating rate debt to be outstanding at any time after September 30, 1999.
(g) The Lessee, the Indenture Trustee, the Owner Trustee shall have received and the Owner Participant each agree to execute any document necessary or advisable to implement Section 20 of this Agreement (i) such opinions including, without limitation, the execution, delivery and/or provision of counsel as they any appropriate additional or modified amendment, representation, warranty, certificate, opinion or other document that may reasonably request concerning compliance with Applicable Law relating to be requested by the sale of securities and (ii) such Lessee or any other opinions of counsel and such certificates and other documents, each in form and substance satisfactory to them, as they may reasonably request in connection with the terms and conditions of this Article XII;
(h) all necessary authorizations, Governmental Actions, approvals and consents in connection with such Refunding shall have been obtained; (i) as a result of such Refunding, the Equity Amount shall not increase or decrease; andperson).
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Refunding. So long as no Termination Material Default or Event or Incipient Termination Event of Default shall be in existenceexistence and Zenith simultaneously requests a refunding or refinancing under the U.S. Participation Agreement, and all Funding Dates have been completed and subject to satisfaction of the terms and conditions set forth in this Article XII XI and in Section 2.12 of the Indenture, the Co-Lessee shall have the right to request the Owner Participant to effect, and the Owner Participant, the Owner Trustee and the Indenture Trustee will agree, at the sole cost and expense of the Lessee whether or not such refunding is consummated, to cooperate to effect, an optional prepayment of all, but not less than all, of the Notes pursuant to Section 2.12 of the Indenture as part of a refunding or refinancing, on the terms set forth in this Article XII XI and such Section 2.12 (such refunding or refinancing, a "Refunding"); provided, that the Lessee shall have the right to so request a Refunding and a "Refunding" under and as defined in the U.S. Participation Agreement only twice in the aggregate; provided further, that a substantially simultaneous Refunding hereunder with a "Refunding" under the U.S. Participation Agreement shall be deemed as one Refunding during refunding request for purposes of such limit and; provided further, that the term Owner Participant shall in any event have the right to consent to any such Refunding, which consent the Owner Participant may withhold in the Owner Participant's sole good faith discretion; except that the Owner Participant shall not have such consent right if and to the extent Hunton & ▇▇▇▇▇▇▇▇, or such other counsel selected by the Owner Participant and reasonably acceptable to the Lessee, delivers an opinion to the Owner Participant (which opinion the Owner Participant agrees to timely request at the time of such Refunding) that, as a result of a change in or clarification of Regulations under Section 467 of the NotesCode (which change or clarification occurs after the Equipment Closing Date and before such Refunding), the absence of such consent right shall not adversely affect the eligibility of the Lease for initial and continued compliance with Section 1.467-3(c)(2)(i) of the Regulations. In connection with a refunding or refinancingRefunding:
(a) there shall be no material change in the Operative Documents except to the extent provided in clause (c) and for the inclusion, if any, of additional covenants upon the Co-Lessee which are acceptable to the Co-Lessee, and specifically, there shall be no change in the Operative Documents adverse to the Owner Participant or the Owner Trustee, in any such Person's reasonable judgment, including the provisions of the Indenture providing the Owner Trustee with rights in the event of an Indenture Default or an Indenture Event of Default;
(b) the Lessee, the Co-Lessee, the Owner Participant, the Owner Trustee, the Indenture Trustee, and any other appropriate parties will enter into an agreement, in form and substance satisfactory to such Persons, providing for (i) the issuance and sale by the Owner Trustee on the date specified in such agreement (for the purposes of this Article XII, the "Refunding Date") of debt securities in an aggregate principal amount (in the lawful currency of the U.S.) equal to the aggregate outstanding principal amount of the Notes on the Refunding Date (the "Replacement Notes"), (ii) payments by the Co-Lessee to the Person or Persons entitled thereto of all other amounts, in respect of accrued interest, and Make Whole Premium Amount, if any, payable on such Refunding Date and all other amounts due and owing to the Noteholders under the Operative Documents, and (iii) such other provisions as are reasonably acceptable to the Owner Participant, the Owner Trustee, the Indenture Trustee, the Lessee and the Co-Lessee;
(c) the Lessee and the Owner Trustee will amend the Lease to provide that Rent payable in respect of the period from and after the Refunding Date shall be recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred; provided, that the net present value of Rent shall be minimized to the extent consistent therewith, and amounts payable in respect of Casualty Value, Termination Value and EBO Price from and after the Refunding Date shall be appropriately recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred (it being agreed that any recalculations pursuant to this clause (c) shall be performed in accordance with the requirements of Article X);
(d) subject to subparagraph (a) above, the Owner Trustee will enter into an agreement not materially different from the Indenture to provide for the securing thereunder of the Replacement Notes issued by the Owner Trustee pursuant to this Article XII in like manner as the Notes refunded;
(e) on the Refunding Date and as a condition precedent to such Refunding, the entire principal amount of Notes, together with accrued interest thereon, the Make Whole Premium Amount, if any, and all other sums due to the Lenders under the Operative Documents shall be prepaid or paid in accordance with Section 2.12 of the Indenture;
(f) the Co-Lessee shall pay to the Owner Participant a Refunding fee in an amount equal to $25,000;
(g) the Lessee, the Owner Participant, the Owner Trustee and the Indenture Trustee shall have received (i) such opinions of counsel as they may reasonably request concerning compliance with Applicable Law relating to the sale of securities and (ii) such other opinions of counsel and such certificates and other documents, each in form and substance satisfactory to them, as they may reasonably request in connection with the terms and conditions of this Article XII;
(h) all necessary authorizations, Governmental Actions, approvals and consents in connection with such Refunding shall have been obtained; (i) as a result of such Refunding, the Equity Amount shall not increase or decrease; and
Appears in 1 contract
Refunding. So long as no Termination Material Default or Event or Incipient Termination Event of Default shall be in existenceexistence and Zenith of Texas simultaneously requests a refunding or refinancing under the Mexican Participation Agreement, and all Funding Dates have been completed and subject to satisfaction of the terms and conditions set forth in this Article XII XI and in Section 2.12 of the Indenture, the Co-Lessee shall have the right to request the Owner Participant to effect, and the Owner Participant, the Owner Trustee and the Indenture Trustee will agree, at the sole cost and expense of the Lessee whether or not such refunding is consummated, to cooperate to effect, an optional prepayment of all, but not less than all, of the Notes pursuant to Section 2.12 of the Indenture as part of a refunding or refinancing, on the terms set forth in this Article XII XI and such Section 2.12 (such refunding or refinancing, a "Refunding"); provided, that the Lessee shall have the right to so request a Refunding and a "Refunding" under and as defined in the Mexican Participation Agreement only twice in the aggregate; provided further, that a substantially simultaneous Refunding hereunder with a "Refunding" under the Mexican Participation Agreement shall be deemed as one Refunding during refunding request for purposes of such limit and; provided further, that the term Owner Participant shall in any event have the right to consent to any such Refunding, which consent the Owner Participant may withhold in the Owner Participant's sole good faith discretion; except that the Owner Participant shall not have such consent right if and to the extent Hunton & ▇▇▇▇▇▇▇▇, or such other counsel selected by the Owner Participant and reasonably acceptable to the Lessee, delivers an opinion to the Owner Participant (which opinion the Owner Participant agrees to timely request at the time of such Refunding) that, as a result of a change in or clarification of Regulations under Section 467 of the NotesCode (which change or clarification occurs after the Equipment Closing Date and before such Refunding), the absence of such consent right shall not adversely affect the eligibility of the Lease for initial and continued compliance with Section 1.467-3(c)(2)(i) of the Regulations. In connection with a refunding or refinancingRefunding:
(a) there shall be no material change in the Operative Documents (except to the extent provided in clause (c) and for the inclusion, if any, of additional covenants upon the Co-Lessee which are acceptable to to, or required by, the Co-LesseeLessee and the Owner Participant), and specifically, there shall be no change in the Operative Documents adverse to the Owner Participant or the Owner Trustee, in any either of such Person's reasonable judgment, including the provisions of the Indenture providing the Owner Trustee with rights in the event of an Indenture Default or an Indenture Event of Default;
(b) the Lessee, the Co-Lessee, the Owner Participant, the Owner Trustee, the Indenture Trustee, and any other appropriate parties will enter into an agreement, in form and substance satisfactory to such Persons, providing for (i) the issuance and sale by the Owner Trustee on the date specified in such agreement (for the purposes of this Article XIIXI, the "Refunding Date") of debt securities in an aggregate principal amount (in the lawful currency of the U.S.) equal to the aggregate outstanding principal amount of all of the Notes on the Refunding Date, after taking into account any scheduled amortization of principal, if any, occurring on such Refunding Date (the "Replacement Notes"), (ii) payments by the Co-Lessee as Supplemental Rent to the Person or Persons entitled thereto of all other amounts, in respect of accrued interest, and Make Whole Premium Amount, if any, payable on such Refunding Date and all other amounts due and owing to the Noteholders Lenders under the Operative Documents, and (iii) such other provisions as are reasonably acceptable to or required by the Owner Participant, the Owner Trustee, the Indenture Trustee, the Lessee and the Co-LesseeGuarantor;
(c) the Lessee and the Owner Trustee will amend the Lease to provide that Rent payable in respect of the period from and after the Refunding Date shall be recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred; provided, that the net present value of Rent shall be minimized to the extent consistent therewith, and amounts payable in respect of Casualty Value, Termination Value Value, and the EBO Price from and after the Refunding Date shall be appropriately recalculated to preserve the Net Economic Return which the Owner Participant would have realized had such refunding or refinancing not occurred (it being agreed that any recalculations pursuant to this clause (c) shall be performed in accordance with the requirements of Article XIX);
(d) subject to subparagraph (a) above, the Owner Trustee will enter into an agreement not materially different from the Indenture to provide for the securing thereunder of the Replacement Notes issued by the Owner Trustee pursuant to this Article XII XI in like manner as the Notes refunded;
(e) on the Refunding Date and as a condition precedent to such Refunding, the entire principal amount of Notes, together with accrued interest thereon, the Make Whole Premium Amount, if any, and all other sums due to the Lenders under the Operative Documents shall be prepaid or paid in accordance with Section 2.12 of the Indenture;
(f) the Co-Lessee shall pay or cause to be paid to the Owner Participant a Refunding fee in an amount equal to $25,000150,000 (it being understood that one payment of $150,000 will discharge the Lessee's obligation under this Section 11.1(f) and Zenith of Texas' obligation under Section 11.1(f) of the Mexican Participation Agreement);
(g) such refinancing shall not result in a violation of Applicable Law and the Lessee, the Guarantor, the Owner Participant, the Owner Trustee and the Indenture Trustee shall have received (i) such opinions of counsel as they may reasonably request concerning compliance with Applicable Law relating to the sale of securities and (ii) such other opinions of counsel and such certificates and other documents, each in form and substance satisfactory to them, as they may reasonably request in connection with the terms and conditions of this Article XIIXI;
(h) all necessary authorizations, Governmental Actions, approvals and consents in connection with such Refunding shall have been obtained; ;
(i) as a result of such Refunding, the Equity Amount shall not increase or decrease; and
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