Substitution. The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that: (A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer; (B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor; (C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer; (D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect; (E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct; (F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders; (G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and (H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 11 contracts
Sources: Supplemental Trust Deed, Supplemental Trust Deed, Supplemental Trust Deed
Substitution. The Trustee mayUnless otherwise provided in the Trust Agreement, without the consent right to substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that is an asset of the ETP Securityholders, but subject Trust shall be limited to (i) in the prior consent case of each Authorised Participant and the Margin Loan Provider, agree substitutions pursuant to the substitution, in place of the Issuer (Section 2.03(a) or of any previous substitute2.03(c) as the principal debtor under the Security Documentshereof, the other Programme Documents to which it is a party one-year period beginning on the Closing Date and (ii) in the ETP Securities of each Series, case of any other company substitution, the three-month period beginning on the Closing Date. As to any Deleted Mortgage Loan for which Saxon or a Seller substitutes one or more Qualified Substitute Mortgage Loans, Saxon or the Seller, as the case may be, shall effect such substitution by delivering to the Custodian for each such Qualified Substitute Mortgage Loan the related Mortgage Note, the related Security Instrument, the related Assignment(s), and such other documents and agreements, with all necessary endorsements thereon, as are required to be included in the Trustee Mortgage Loan File pursuant to Sections 1.01 and 2.01 hereof, together with a certificate of an Officer of Saxon to the effect that each such Qualified Substitute Mortgage Loan complies with the terms of the Trust Agreement and notify the Master Servicer and the Trustee in writing of such substitution. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust and will be retained by Saxon or the Seller, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the first day of the month in which the substitution occurs, and Saxon or the Seller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of the Trust Agreement and the substitution of each such Qualified Substitute Mortgage Loan. Each Qualified Substitute Mortgage Loan shall be subject, as of the date of its substitution, to the terms of the Trust Agreement in all respects (incorporated including the representations and warranties of Saxon with respect to the Mortgage Loans set forth in the Trust Agreement). In addition, in the case of any jurisdictionsubstitution effected by a Seller, each Qualified Substitute Mortgage Loan shall be subject, as of the date of its substitution, to the terms of the related Sales Agreement (including the representations and warranties of the Seller with respect to the Mortgage Loans set forth in the Sales Agreement). The Trustee shall, within five Business Days of its receipt of the documents referred to above, effect the conveyance of such Deleted Mortgage Loan to Saxon or the Seller, as the case may be, in accordance with the procedures specified above. For any month in which Saxon or a Seller substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer shall determine and notify the Trustee in writing of the amount, if any, by which the aggregate Unpaid Principal Balance of all such Qualified Substitute Mortgage Loans as of the date of substitution is less than the aggregate Unpaid Principal Balance of all such Deleted Mortgage Loans (after application of Monthly Payments due in the month of substitution) (any such substitute company being the "Substituted ObligorSubstitution Shortfall"), provided that:
(A) a deed is executed or undertaking given by . On the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities date of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, Saxon or the Trustee need not have regard Seller, as the case may be, shall deliver or cause to be delivered to the Substituted Obligor’s financial conditionPaying Agent, profits or prospects or compare them with those of for deposit into the Issuer;
(D) the Trustee will be satisfied (if it requiresAsset Proceeds Account, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial an amount equal to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionSubstitution Shortfall.
Appears in 8 contracts
Sources: Trust Agreement (Saxon Asset Securities Co), Trust Agreement (Saxon Asset Securities Co), Trust Agreement (Saxon Asset Securities Co)
Substitution. (A) The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution in place of the Issuer (or of any previous substitute) as the principal debtor under the relevant Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "“Substituted Obligor"”), provided that:
(A1) a deed is executed or undertaking is given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the terms of the relevant Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the relevant Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B2) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured PropertyProperty in respect of a Series of ETP Securities, acknowledges the Security created in respect thereof pursuant to the relevant Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property in respect of a Series of ETP Securities as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C3) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s 's financial condition, profits or prospects or compare them with those of the Issuer;
(D4) the Trustee will shall be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E5) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other relevant Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F6) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the relevant Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G7) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) 8) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 6 contracts
Sources: Master Trust Deed, Master Trust Deed, Master Trust Deed
Substitution. 11.1 If the Department approves (or is deemed to have approved) a Substitution Notice pursuant to Section 10 above, the Substituted Entity named therein shall execute a duly completed Substitute Accession Agreement substantially in the form attached hereto as Schedule A and submit it to the Department (with a copy thereof to the other parties to this Direct Agreement). The Trustee mayassignment set forth in the Substitute Accession Agreement shall become effective on and from the date on which (a) the Collateral Agent or the Substituted Entity lawfully succeeds to all the Developer’s Interest through exercise of foreclosure rights and actions on security interests or through transfer from Developer in lieu of foreclosure, (b) the Department receives all payments described in Section 11.4 below and (c) the Department countersigns the Substitute Accession Agreement (the “Substitution Effective Date”), or the date that is ten days after the date the Department receives the completed Substitute Accession Agreement if the Department fails to sign the Substitute Accession Agreement.
11.2 As of the Substitution Effective Date:
(a) Such Substituted Entity shall become a party to the Contract Documents and this Direct Agreement in place of Developer;
(b) All of Developer's obligations and liabilities under the Contract Documents and under this Direct Agreement arising from and after the Substitution Effective Date shall be immediately and automatically transferred to the Substituted Entity, without release of Developer from any such obligations and liabilities to the consent Department. Notwithstanding the foreclosure or other enforcement of any security interest created or perfected by a Financing Document, and notwithstanding occurrence of the ETP SecurityholdersSubstitution Date, but Developer shall remain liable to the Department for the payment of all sums owing to the Department under the Agreement and for the performance and observance of all of Developer’s covenants and obligations under the Agreement;
(c) Such Substituted Entity shall exercise and enjoy the rights and perform the obligations of Developer under the Contract Documents and this Direct Agreement, and
(d) The Department shall owe its obligations (including any undischarged liability with respect to any loss or damage suffered or incurred by Developer prior to the Substitution Effective Date) under the Contract Documents and this Direct Agreement to such Substituted Entity in place of Developer, subject to the Department’s right to offset any losses or damages suffered or incurred by the Department as provided under the Agreement.
11.3 The Department shall use its reasonable efforts to facilitate the transfer to the Substituted Entity of Developer's obligations under the Agreement and this Direct Agreement.
11.4 The Substituted Entity shall pay to the Department on the Substitution Effective Date any amount due to the Department under the Agreement and this Direct Agreement, including the Department’s reasonable costs and expenses incurred in connection with (a) Developer’s default and termination, (b) the Department’s activities with respect to the Project during any period the Department was in possession of the Project, and (c) the approval of the Substituted Entity, all as of the Substitution Effective Date and notified to such Substituted Entity prior consent to the Substitution Effective Date. The Department’s receipt of each Authorised Participant the payment pursuant to this Section
11.5 The occurrence of the Substitution Effective Date shall not extinguish prior Developer Defaults that remain uncured, and the Margin Loan ProviderDepartment shall continue to have all rights and remedies available under the Agreement with respect to such Developer Defaults, agree including any applicable termination rights, subject to (a) the limitations on the Department’s exercise of such rights and remedies set forth in this Direct Agreement during any applicable Cure Period that continues after the Substitution Effective Date, (b) the limitations on termination due to accumulation of Noncompliance Points prior to the substitution, Substitution Effective Date to the extent provided in place Section 12.4.3 of the Issuer Agreement and (or c) Section 13 below.
11.6 As of any previous substitute) as the principal debtor under the Security DocumentsSubstitution Effective Date, the other Programme Documents to which it is Department shall enter into an equivalent direct agreement on substantially the same terms as this Direct Agreement, save that Developer shall be replaced as a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionEntity.
Appears in 5 contracts
Sources: Project Lease, Project Lease, Project Lease
Substitution. (a) The Trustee may, without the consent of the ETP SecurityholdersNoteholders or Couponholders, (including, but subject to the prior consent of each Authorised Participant and the Margin Loan Providernot limited to, in circumstances which would constitute a Permitted Reorganisation) agree to the substitutionsubstitution of the Issuer’s successor in business, transferee or assignee or any subsidiary of the Issuer or its successor in business, transferee or assignee (the “Substituted Obligor”) in place of the Issuer (or of any previous substitutesubstitute under this Clause) as the principal debtor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Notes, the Receipts, the Coupons and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Talons provided that:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by this Trust Deed, the Security Documents Notes, the Receipts, the Coupons and the ETP Securities of each Series Talons (with such consequential or other amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Notes, the Certificates, the Receipts, the Coupons and the ETP Securities Talons as the principal debtor in place of the IssuerIssuer (or of any previous substitute under this Clause);
(Bii) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant “Substituted Territory”) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the Issuer (or of any previous substitute under this Clause) is subject generally (the “Issuer’s Territory”), the Substituted Obligor shall (unless the Trustee may require so that otherwise agrees) give to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 8 with the Issuer substitution for the obligations references in that Condition to the Issuer’s Territory of references to the Substituted ObligorTerritory whereupon this Trust Deed, the Notes, the Certificates, the Receipts, the Coupons and the Talons shall be read accordingly;
(Ciii) if any director two authorised signatories of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the IssuerIssuer (or of any previous substitute under this Clause);
(Div) (unless all or Substantially All (as defined in Condition 20) of the assets of the Issuer (or of any previous substitute under this Clause) are transferred to the Substituted Obligor) an unconditional and irrevocable guarantee in form and substance satisfactory to the Trustee is given by the Issuer (or any previous substitute under this Clause) of the obligations of the Substituted Obligor under this Trust Deed shall have been given; and
(v) the Trustee will be is satisfied (if it requires, by reference to legal opinions) that (ai) the Substituted Obligor has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with the its assumption by the Substituted Obligor of liability as principal debtor under this Trust Deed and in respect of, and of its obligations underthe Notes, the ETP Securities Receipts and the Coupons in place of each Series and the Issuer (or any Programme Document have been obtained previous substitute under this Clause) and (bii) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 5 contracts
Sources: Trust Deed, Trust Deed, Trust Deed
Substitution. The Trustee may, without the consent of the ETP SecurityholdersNoteholders, but subject Receiptholders or Couponholders, agree with Cadbury Schweppes to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution in place of the Cadbury Schweppes in its capacity as either Issuer or Guarantor (or of any previous substitutesubstitute under this Condition) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(Ai) a deed Successor in Business (as defined in the Trust Deed) to Cadbury Schweppes or (ii) a Holding Company (as defined in the Trust Deed) of Cadbury Schweppes or (iii) a Subsidiary of Cadbury Schweppes which is executed or undertaking given by the Substituted Obligor acceptable to the Trustee, in form and manner satisfactory each case subject to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so being satisfied that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as Noteholders will not be materially prejudiced thereby and certain other conditions set out in the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trust Deed being complied with. The Trustee may, without the consent of the holders of the ETP SecuritiesNoteholders, Receiptholders or Couponholders, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documentswith CSF, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial CSI and Cadbury Schweppes to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer CSF or CSI (or of any previous substitutesubstitute under this Condition) of (i) another Subsidiary of Cadbury Schweppes, (ii) any relevant Obligor or its Successor in Business (in which case the Guarantee of such Obligor shall cease and determine), (iii) a Subsidiary of a Holding Company of Cadbury Schweppes or its Successor in Business or (iv) a Holding Company of Cadbury Schweppes or its Successor in Business (in each of which cases (iii) and these Conditions(iv) the Guarantee of Cadbury Schweppes shall cease and determine if the Trustee is satisfied that the interests of the Noteholders will not be materially prejudiced if they become holders of Notes of such Subsidiary or Holding Company without the benefit of the Guarantee of Cadbury Schweppes rather than if they were to remain holders of Notes of CSF or, as the Security Documentscase may be, CSI with the other Programme Documents and benefit of the ETP Securities shall be deemed to be amended as necessary to give effect Guarantee of Cadbury Schweppes), in each case subject to the substitutionTrustee being satisfied that the interests of the Noteholders will not be materially prejudiced thereby and certain other conditions set out in the Trust Deed being complied with.
Appears in 4 contracts
Sources: Supplemental Trust Deed (Cadbury Schweppes Public LTD Co), Fourth Supplemental Trust Deed (Cadbury Schweppes Public LTD Co), Supplemental Trust Deed (Cadbury Schweppes Public LTD Co)
Substitution. The Trustee may, without the consent of the ETP SecurityholdersNoteholders, but subject agree with the Issuer to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution in place of the Issuer (or of any previous substituteSubstituted Issuer (as defined below) as the principal debtor under in respect of the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, Notes of any other company body corporate (incorporated in any jurisdiction) (any such substitute company being the "Substituted ObligorSUBSTITUTED ISSUER"), ) provided that:
(A) 20.1.1 a trust deed or an indenture is executed or some other form of undertaking is given by the Substituted Obligor Issuer to the Trustee, Trustee in form and manner satisfactory to the Trustee, agreeing Trustee to be bound by the Security Documents terms of this Deed and by the ETP Securities of each Series Conditions (with such any consequential amendments as which the Trustee may reasonably consider or deem to be appropriate) as fully as if the Substituted Obligor Issuer had been a party to this Deed and named herein and in the Security Documents and the ETP Securities Notes as the principal debtor in respect of the Notes in place of the Issuer;
(B) 20.1.2 the Substituted Obligor assumes all rights, obligations and liabilities in relation Issuer becomes a party to the Secured Property, acknowledges the Security created in respect thereof pursuant relevant Series Documents or to equivalent documents acceptable to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted ObligorTrustee;
(C) 20.1.3 if any a director of the Substituted Obligor Issuer certifies that it the Substituted Issuer will be solvent immediately after such substitutionthe time at which the said substitution is to be effected, the Trustee need shall not have regard to the Substituted Obligor’s financial condition, profits or prospects of the Substituted Issuer or compare them the same with those of the IssuerIssuer (or any other Substituted Issuer substituted under this Clause);
(D) 20.1.4 the Trustee is satisfied that the relevant transaction is not materially prejudicial to the interest of the Noteholders;
20.1.5 confirmation is received from the rating agencies appointed in relation to any Related Beneficiary Debt issued in respect of such Series that the ratings assigned to such Related Beneficiary Debt will not be withdrawn or reduced as a result of the substitution;
20.1.6 the Trustee shall be satisfied (if by means of legal opinions in form and substance satisfactory to it requires, by reference to legal opinionsor otherwise) that (ai) all necessary governmental and regulatory approvals and consents necessary for for, or in connection with with, the assumption by the Substituted Obligor Issuer of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained this Deed and (bii) such approvals and consents are at the time of substitution in full force and effect;; and
(E) 20.1.7 the Issuer or, as the case may be, the previous Substituted Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) and make such representations and warranties and provide such other documentation (particularly, but not limited to, with regard to any applicable bankruptcy law) as the Trustee may require in order to be satisfied that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders Noteholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 4 contracts
Sources: Security Trust Deed and MTN Cash Management Agreement (Barclaycard Funding PLC), Security Trust Deed and MTN Cash Management Agreement (Gracechurch Receivables Trustee LTD), Security Trust Deed and MTN Cash Management Agreement (Barclaycard Funding PLC)
Substitution. The Trustee Issuer (the “Retiring Issuer” and the expressions “Issuer” and “Retiring Issuer” include any previous relevant Substitute Issuer (as defined below) under this Condition 14) may, without the consent of the ETP Securityholdersrelevant Noteholders or Couponholders, but subject to substitute the prior consent Parent or any subsidiary of each Authorised Participant and the Margin Loan Provider, agree to the substitution, Parent (including TFS) in place of the Issuer (or of any previous substitute) as the principal debtor under the Security DocumentsNotes, the other Programme Documents to which it is a party relative Coupons, the Agency Agreement and (in the ETP Securities case of each Series, Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement and (in the case of any other company Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement (incorporated in any jurisdictionthe “Substitute Issuer”) (any such substitute company being the "Substituted Obligor"), provided that:
(Aa) in the case of the substitution of a subsidiary of the Parent (other than TFS or any other Issuer) in place of the Retiring Issuer, a Credit Support Agreement, in the case of a subsidiary of TFS, between such subsidiary and TFS being entered into, and the TMC Credit Support Agreement applying, mutatis mutandis on the terms of the relevant Credit Support Agreement and the TMC Credit Support Agreement, respectively and, in the case of a subsidiary of the Parent (and not being also a subsidiary of TFS) a Credit Support Agreement between such subsidiary and the Parent being entered into mutatis mutandis on the terms of the TMC Credit Support Agreement;
(b) a deed is poll substantially in the form set out in Appendix G to the Agency Agreement (and such other documents (if any)) shall be executed or undertaking given by the Substituted Obligor Substitute Issuer and the Retiring Issuer as may be necessary to give full effect to the Trustee, substitution (the “Substitution Documents”) and (without limiting the generality of the foregoing) under which (i) the Substitute Issuer shall undertake in form favour of the relevant Noteholders and manner satisfactory to the Trustee, agreeing Couponholders to be bound by the Security Documents terms and conditions of the ETP Securities relevant Notes and Coupons, the provisions of each Series the Agency Agreement and (with such consequential amendments in the case of Registered Notes issued by Toyota Credit Canada Inc.) the provisions of the TCCI Note Agency Agreement and (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the provisions of the TMCC Note Agency Agreement, as the Trustee may deem appropriate) fully as if the Substituted Obligor Substitute Issuer had been named in the Security Documents relevant Notes and Coupons, the ETP Securities Agency Agreement and (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement and (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement, as the principal debtor in respect of the relevant Notes and Coupons, the Agency Agreement and (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement and (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement, in place of the Retiring Issuer; and (ii) the Retiring Issuer shall be released from its obligations as principal debtor in respect of the relevant Notes and Coupons, the Agency Agreement and (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement and (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement;
(Bc) the Substituted Obligor assumes all rights, obligations and liabilities in relation without prejudice to the Secured Propertygenerality of paragraph (b) above, acknowledges where the Security created Substitute Issuer is subject generally to a taxing jurisdiction differing from or in respect thereof pursuant addition to the Security taxing jurisdiction to which the Retiring Issuer for which it shall have been substituted under this Condition 14 was subject, the Substitute Issuer shall undertake or covenant in the Substitution Documents and takes all such action in terms corresponding to the provisions of Condition 7 with the substitution for or addition to the references to the taxing jurisdiction to which the Retiring Issuer, as the Trustee case may require so that be, was subject of references to the Security constitutes a valid chargetaxing jurisdiction or additional taxing jurisdiction to which such Substitute Issuer, pledge or other security interest over as the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligorcase may be, is subject and in such case, Condition 7 shall be deemed to be modified accordingly when such substitution takes effect;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(Dd) the Trustee will be satisfied Substitution Documents shall contain a warranty and representation (if it requires, by reference to legal opinionsi) that (a) the Substitute Issuer and the Retiring Issuer have obtained all necessary governmental and regulatory approvals and consents for the substitution and that the Substitute Issuer has obtained all necessary governmental and regulatory approvals and consents for the performance by the Substitute Issuer of its obligations under the Substitution Documents and that all such approvals and consents are in full force and effect, (ii) that the obligations assumed by the Substitute Issuer in respect of the relevant Notes and Coupons, the Agency Agreement and (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement and (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement are, in each case, valid and binding in accordance with their respective terms and enforceable by each relevant Noteholder, and (iii) the Substitute Issuer is solvent;
(e) any credit rating obtained by the Retiring Issuer from a nationally recognised statistical rating organisation which applies to the relevant Notes will not be downgraded as a result of the substitution;
(f) each stock exchange on which the relevant Notes are admitted to trading shall have confirmed that, following the proposed substitution of the Substitute Issuer, such Notes will continue to be admitted to trading on such stock exchange;
(g) where the Substitute Issuer is not a company incorporated in the United Kingdom, the Substitute Issuer shall have appointed a process agent as its agent in England to receive service of process on its behalf in relation to any legal action or proceedings arising out of or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, relevant Notes and of its obligations underCoupons, the ETP Securities of each Series and any Programme Document have been obtained Agency Agreement and (bin the case of Registered Notes issued by Toyota Credit Canada Inc.) such approvals the TCCI Note Agency Agreement and consents are at (in the time case of substitution in full force and effectRegistered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement;
(Eh) in the case of substitution of TCCI or a Canadian subsidiary of the Parent (“Canadian Replacement Subsidiary”) in place of the Retiring Issuer, no withholding or other taxes will be payable or required to be withheld by any such Substitute Issuer other than in respect of a holder of the relevant Notes or Coupons that: (i) does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) with TCCI or the Canadian Replacement Subsidiary (as applicable) or (ii) is, or does not deal at arm’s length with any person who is, a “specified shareholder” of TCCI or the Canadian Replacement Subsidiary (as applicable) for the purposes of the thin capitalisation rules in the Income Tax Act (Canada);
(i) legal opinions shall have been delivered to the Agent or (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Registrar or (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Registrar (from whom copies will be available) (in each case dated not more than three days prior to the intended date of substitution) from legal advisers of good standing selected by the Substitute Issuer (i) in each jurisdiction in which the Substitute Issuer and the Substituted Obligor will execute Retiring Issuer are incorporated and in England confirming, as appropriate, that upon the substitution taking place, the Substitution Documents constitute legal, valid and binding obligations of the Substitute Issuer and the relevant Notes and Coupons, the Agency Agreement and (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement and in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement, are legal, valid and binding obligations of the Substitute Issuer shall procure enforceable in accordance with their terms; and (ii) in Japan and in the jurisdiction in which the Substitute Issuer is incorporated, in the event any Credit Support Agreements are entered into under paragraph (a) above, confirming that any such Credit Support Agreements constitute legal, valid and binding obligations of the Margin Loan Provider Parent, TFS and any other Programme Party will execute such other deedsthe Substitute Issuer, documents and instruments (if any) as the Trustee case may require be, enforceable in order that such substitution is fully effective and comply accordance with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;its terms; and
(Fj) in connection with any proposed such substitution, the Substitute Issuer and the Retiring Issuer shall not have regard to the consequences of such substitution of for individual Noteholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory and no person shall be entitled to claim whether from the Substitute Issuer, the Trustee mayRetiring Issuer, without the consent Agent, (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Registrar and the TCCI Transfer Agent, (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Registrar and the TMCC Transfer Agent, or any other person, any indemnification or payment in respect of any tax consequence of any such substitution upon any person except to the extent already provided in Condition 7 and/or any undertaking given in addition thereto or in substitution therefor in the Substitution Documents in accordance with paragraph (c) above. Upon execution of the holders of Substitution Documents as referred to in paragraph (b) above, (i) the ETP Securities, agree to a change of Substitute Issuer shall be the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, relevant Issuer named in the opinion relevant Notes and Coupons, the Agency Agreement and (in the case of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(GRegistered Notes issued by Toyota Credit Canada Inc.) the Issuer TCCI Note Agency Agreement and the Substituted Obligor comply with such other requirements as the Trustee may direct (in the interests case of Registered Notes issued by Toyota Motor Credit Corporation) the ETP Securityholders; and
(HTMCC Note Agency Agreement) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Retiring Issuer (or of any previous substitute) and these Conditionsthe relevant Notes and Coupons, the Security DocumentsAgency Agreement and (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement and (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement, the other Programme Documents and the ETP Securities shall thereby be deemed to be amended as necessary to give effect to the substitutionsubstitution of the Substitute Issuer as principal debtor; and (ii) the Retiring Issuer shall be released as aforesaid from all of its obligations as principal debtor in respect of the relevant Notes and Coupons, the Agency Agreement and (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement and (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement. With effect on and from the time of the substitution of the Substitute Issuer in place of the Retiring Issuer:
(A) the Retiring Issuer has no further obligations to any Noteholder or Couponholder in relation to the relevant Notes and Coupons;
(B) the Substitute Issuer has rights which the Retiring Issuer had in respect of the relevant Notes and Coupons (in each case subject to paragraph (c) above); and
(C) the Substitute Issuer has assumed the obligations towards the Noteholders and Couponholders which the Retiring Issuer had in respect of the relevant Notes and Coupons. The Substitution Documents shall be deposited with and held by the Agent and (in the case of Registered Notes issued by Toyota Credit Canada Inc.) copied to the TCCI Registrar and (in the case of Registered Notes issued by Toyota Motor Credit Corporation) copied to the TMCC Registrar, for so long as any of the relevant Notes remain outstanding and for so long as any claim made against the Substitute Issuer or the Retiring Issuer by any Noteholder or Couponholder in relation to the relevant Notes, Coupons, the Agency Agreement, or (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement or (in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement, or the Substitution Documents shall not have been finally adjudicated, settled or discharged. The Substitute Issuer and the Retiring Issuer shall acknowledge in the Substitution Documents the right of every Noteholder to the production of the Substitution Documents for the enforcement of any of the relevant Notes, Coupons, the Agency Agreement, or (in the case of Registered Notes issued by Toyota Credit Canada Inc.) the TCCI Note Agency Agreement, or in the case of Registered Notes issued by Toyota Motor Credit Corporation) the TMCC Note Agency Agreement, or the Substitution Documents. Within 14 days of a substitution taking effect under this Condition 14, the Retiring Issuer shall give notice of such substitution to the relevant Noteholders in accordance with Condition 16.
Appears in 3 contracts
Sources: Agency Agreement (Toyota Motor Credit Corp), Agency Agreement (Toyota Motor Credit Corp), Agency Agreement (Toyota Motor Credit Corp)
Substitution. The Trustee may, without (A) Without the consent of the ETP Securityholders, Trustee or an Extraordinary Resolution or a Written Resolution (but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderClause 18(F)), agree to the substitution, in place of the Issuer (or of any previous substituteSubstitute (as defined below) under this sub-clause), may substitute itself as the principal debtor under these presents, by any Successor (in this Clause called the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction“Substitute”) (any such substitute company being the "Substituted Obligor"), provided thatPROVIDED THAT:
(Ai) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Substitute to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of these presents and the ETP Securities of each Series (Notes with such any consequential or other amendments which may be appropriate as the Trustee may deem appropriate) fully as if the Substituted Obligor Substitute had been named in the Security Documents and the ETP Securities these presents as the principal debtor in place of the IssuerIssuer (or any such previous Substitute);
(Bii) arrangements are made to the satisfaction of the Trustee for the Noteholders to have or be able to have the same or equivalent rights against the Substitute as they have against the Issuer (or any such previous Substitute);
(iii) the Substituted Obligor assumes all rights, Substitute shall have acquired the rights and assumed the obligations of the Issuer (or any such previous Substitute) under or in connection with the Loan Agreement and liabilities in relation the Account and such rights shall have been effectively charged to the Secured Property, acknowledges the Security created Trustee in respect thereof pursuant a manner satisfactory to the Security Documents Trustee and takes all such action amendments to the Loan Agreement and these presents as the Trustee may reasonably require so that shall have been made (including, without prejudice to the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations generality of the Substituted Obligorforegoing, but subject to Clause (vi) below, the substitution therein where relevant of references to the territory where the Substitute is incorporated, domiciled or resident for references to Luxembourg);
(Civ) if the Issuer (or any director such previous Substitute) and the Substitute comply with such other reasonable requirements as the Trustee may direct in the interests of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the IssuerNoteholders;
(Dv) the Trustee will be is satisfied (if it requires, by reference to legal opinions) that (a) the Substitute has obtained all necessary governmental and regulatory and internal corporate approvals and consents necessary for its assumption of the obligations and liabilities under these presents in place of the Issuer (or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, any such previous Substitute) and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(Evi) (without prejudice to the Issuer and generality of paragraphs (i) to (v) (inclusive) of this sub-clause) where the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any Substitute is incorporated, domiciled or resident in a territory other Programme Party will execute such other deeds, documents and instruments than Luxembourg (if any) which territory must be a Qualifying Jurisdiction (as the Trustee may require in order that such substitution is fully effective and comply with such other requirements defined in the interests Loan Agreement)), undertakings or covenants are given in terms corresponding to the provisions of Condition 7 with the ETP Securityholders as substitution for the Trustee may directreferences to Luxembourg of references to the territory in which the Substitute is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any political subdivision or authority of or in which, the Substitute is otherwise subject generally;
(Fvii) the Substitute shall be a bank or other institution which at the time being exempts the payments by the Borrower under the Loan from value added tax in connection with any proposed substitution the Russian Federation;
(viii) as a consequence of the Issuersuch substitution, the Notes continue on the substitution and promptly thereafter to be listed on any stock exchange on which they are then listed;
(ix) the Trustee may, without is satisfied that the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would said substitution is not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements Noteholders as the Trustee may direct in the interests of the ETP Securityholdersa class; and
(Hx) a legal opinion satisfactory the Issuer or the Substitute shall have delivered to the Trustee is provided concerning any proposed substitution. An and to the Borrower an opinion of an independent lawyer to the effect that neither the Issuer, the Substitute, as the case may be, nor the Noteholders will recognise income, gain or loss for tax purposes as a result of the substitution and the Issuer, the Substitute and the Noteholders will be subject to taxes on the same amount and in the same manner and at the same times as would have been the case if such substitution had not occurred.
(B) Any such agreement by the Trustee pursuant to sub-clause (A) of this Condition 14.3 and Clause shall, to the Security Documents will, if extent so expressed, operate to release the Issuer or previous Substitute (or a previous substituteas the case may be) from any or all of its obligations under these presents. Not later than fourteen days after the Security Documentsexecution of any such documents as aforesaid and after compliance with the Trustee’s said requirements, notice thereof shall be given by the ETP Securities and Issuer or previous Substitute (as the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution case may be) to the ETP Securityholders within 14 calendar days of Noteholders in the manner provided in Condition 14.
(C) Upon the execution of such documents and compliance with such the said requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor Substitute shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents as the principal debtor in place of the Issuer or previous Substitute (or of any previous substituteas the case may be) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents shall thereupon be deemed to be amended in such manner as shall be necessary to give effect to the substitution and, without prejudice to the generality of the foregoing, any references in these presents to the Issuer shall be deemed to be references to the Substitute.
(D) If any two directors (or other equivalent officers) of the Substitute shall certify to the Trustee that the Substitute is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to the financial condition, profits or prospects of the Substitute or to compare the same with those of the Issuer or (as the case may be) the previous Substitute.
(E) The Issuer or previous Substitute, as the case may be, shall not be entitled to substitute itself if, pursuant to the law of the country of incorporation, domicile or residence of the Substitute, the assumption by the Substitute of its obligations imposes responsibilities on the Trustee over and above those which have been assumed under these presents.
(F) The Issuer or previous Substitute, as the case may be, shall only be entitled to substitute itself in accordance with the provisions of Clause 18(A) to (E) (inclusive) of these presents without the consent of the Borrower if:
(i) at least 3 months prior to the date of a proposed substitution pursuant to this Clause 18, the Issuer or previous Substitute has notified the Borrower in writing of its intention to substitute itself; and
(ii) prior to the date of such proposed substitution, the Borrower either has not notified the Issuer or previous Substitute of a Substitute or has notified the Issuer or previous Substitute of a Substitute that the Issuer or previous Substitute is not satisfied shall have complied with the provisions of this Clause 18. For the purposes of this Clause 18(F), the Trustee shall be entitled to rely solely on a certificate of two members of the Board of Directors to determine whether the conditions set forth at sub-clauses (i) and (ii) in this Clause 18(F) have been satisfied.
Appears in 3 contracts
Sources: Trust Deed (Open Joint Stock Co Vimpel Communications), Trust Deed (Open Joint Stock Co Vimpel Communications), Trust Deed (Open Joint Stock Co Vimpel Communications)
Substitution. The Trustee mayIssuer, or any previously substituted company, may at any time, without the consent of the ETP SecurityholdersNoteholders or the Couponholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place of the Issuer (or of any previous substitute) substitute for itself as the principal debtor under the Security Documents, the other Programme Documents to which it is a party Notes and the ETP Securities of each Series, of any other Coupons a company (incorporated the Substitute) as principal debtor under the Notes or Coupons in any jurisdiction) the manner specified in Schedule 6 to the Agency Agreement, provided that no payment in respect of the Notes or the Coupons is at the relevant time overdue. The substitution shall be made by a deed poll (any such substitute company being the "Substituted Obligor"Deed Poll), provided thatto be substantially in the form exhibited to the Agency Agreement, and may take place only if:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted ObligorSubstitute under the Deed Poll, the Notes and the Coupons shall be unconditionally and irrevocably guaranteed by Equinor ASA (in such capacity, the New Guarantor and such guarantee, the New Guarantee) and (in the case of Notes having the benefit of the Guarantee) the Guarantor, by means of the Deed Poll;
(Cii) if all action, conditions and things required to be taken, fulfilled and done (including the obtaining of any director necessary consents) to ensure that the Deed Poll, the Notes and Coupons represent valid, legally binding and enforceable obligations of the Substituted Obligor certifies that it will be solvent immediately after such substitution, Substitute and in the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those case of the Issuer;
Deed Poll of the New Guarantor and (Din the case of Notes having the benefit of the Guarantee) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document Guarantor have been obtained taken, fulfilled and (b) such approvals done and consents are at the time of substitution in full force and effect;
(Eiii) the Substitute shall have become party to the Agency Agreement, with any appropriate consequential amendments, as if it had been an original party to it;
(iv) each stock exchange or listing authority which has the Notes listed on such stock exchange shall have confirmed that following the proposed substitution of the Substitute the Notes would continue to be listed on such stock exchange;
(v) legal opinions addressed to the Noteholders shall have been delivered to them (care of the Agent) from a lawyer or firm of lawyers with a leading securities practice in (i) the Kingdom of Norway and, if applicable, any Substitute Jurisdiction (as defined in the final paragraph of this Condition 14 (Substitution)) and (ii) England, in each case as to the fulfilment of the preceding conditions of this Condition 14 (Substitution) and the other matters specified in the Deed Poll; and
(vi) the Issuer shall have given at least 14 days' prior notice of such substitution to the Noteholders, stating that copies, or, pending execution, the agreed text, of all documents in relation to the substitution which are referred to above, or which might otherwise reasonably be regarded as material to Noteholders, will be available for inspection at the specified office of each of the Paying Agents. References in Condition 8 (Events of Default) to obligations under the Notes shall be deemed to include obligations under the Deed Poll, and the Substituted Obligor will execute events listed in Condition 8 (Events of Default) shall be deemed to include the New Guarantee not being (or being claimed by the New Guarantor not to be) in full force and effect and the Issuer shall procure that provisions of Condition 8(c) to 8(e) (Events of Default) inclusive (other than the Margin Loan Provider and any words "other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require than in order that such substitution is fully effective and comply with such other requirements in the interests respect of the ETP Securityholders as termination of the Trustee may direct;
Guarantee pursuant to Condition 2(c) (FTermination of Guarantee)" in Condition 8(e)) shall be deemed to apply in addition to the New Guarantor. In connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will14 (Substitution), if so expressed, release the Issuer (or previously substituted company, as the case may be) or Substitute shall not be required to have regard to, or be in any way liable for, the consequences of such substitution for individual Noteholders or the Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory. No Noteholder or Couponholder shall, in connection with any such substitution, be entitled to claim from the Issuer (or previously substituted company, as the case may be) or Substitute any indemnification or payment in respect of any tax consequence of any such substitution upon such individual Noteholders or Couponholders, except to the extent already provided in Condition 6 (Taxation) as modified in accordance with the following paragraph. Where a previous substitutesubstitution takes place pursuant to this Condition 14 (Substitution) from any or all and the Substitute is subject, by reason of its obligations incorporation or residence for tax purposes, to a jurisdiction or any political subdivision or any authority thereof or therein having power to tax (the Substitute Jurisdiction) other than the Kingdom of Norway (or, as the case may be, the jurisdiction of incorporation or residence for tax purposes of the preceding substituted company) or any political subdivision or any authority thereof or therein having power to tax (the Previous Jurisdiction), references to the Previous Jurisdiction in Condition 5(b) (Redemption for Tax Reasons) and Condition 6 (Taxation) shall, in respect of any payments to be made by the Substitute (but not in respect of payments to be made by (A) the New Guarantor under the Security Documents, New Guarantee or (B) (in the ETP Securities and case of Notes having the other relevant Programme Documents. The Substituted Obligor shall give notice benefit of the substitution Guarantee) the Guarantor), be deemed to be replaced by references to the ETP Securityholders within 14 calendar days of the execution of such documents Substitute Jurisdiction, and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 Conditions 5(b) (Redemption for Tax Reasons) and the Security Documents, the Substituted Obligor 6 (Taxation) shall be deemed to be named in these Conditions, modified accordingly when the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionsubstitution takes place.
Appears in 3 contracts
Sources: Agency Agreement, Agency Agreement (Equinor Asa), Agency Agreement
Substitution. (a) The Trustee may, without the previous consent or sanction of the ETP Securityholdersholders of the Notes, but subject to the prior consent Coupons or Talons of each Authorised Participant and the Margin Loan Providerany Series, agree with the Issuer to the substitution, in place of the Issuer (or of any previous substitute) as the principal debtor under this Trust Deed in relation to the Security DocumentsNotes, the other Programme Documents to which it is a party Coupons and the ETP Securities Talons of each Seriesany Series and under such Notes, Coupons and Talons, of any other company Holding Company or of any subsidiary of the Issuer (incorporated in any jurisdictionhereinafter called the Substituted Issuer) (any such substitute company being the "Substituted Obligor"), provided thatPROVIDED THAT:
(Ai) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Issuer to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of this Trust Deed and the ETP Securities Notes, Coupons and Talons of each Series (the relevant Series, with such any consequential amendments as which the Trustee may deem appropriate) , as fully as if the Substituted Obligor Issuer had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Security Documents Issuer and had been named on the ETP Securities Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;
(Bii) the Trustee shall be satisfied that (x) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with its assumption of the assumption by the Substituted Obligor of liability obligations and liabilities as principal debtor under this Trust Deed in respect ofrelation to the Notes, Coupons and Talons of its obligations under, the ETP Securities of each relevant Series and any Programme Document have been obtained under such Notes, Coupons and Talons in place of the Issuer and (by) such approvals and consents are at the time of substitution in full force and effect;
(Eiii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Substituted Issuer at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct or require in the interests of the ETP Securityholdersholders of the Notes of the relevant Series;
(v) without prejudice to the generality of subparagraphs (i), (ii), (iii) and (iv) of this Clause 15.3(a), where the Substituted Issuer is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 6 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Substituted Issuer is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any authority of or in which, the Substituted Issuer is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) in the case of any Tier 2 Notes, the obligations of the Substituted Issuer in respect of such Tier 2 Notes, Coupons and Talons shall be subordinated on a basis equivalent to that referred to in Condition 2;
(vii) if the directors of the Substituted Issuer shall certify to the Trustee that it is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(Hviii) a legal opinion satisfactory without prejudice to the rights of reliance of the Trustee under paragraph (vii) of this Clause 15.3(a), the Trustee is provided concerning satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes and Coupons of the relevant Series. Upon the execution of such documents and compliance with the said requirements:
(A) the Substituted Issuer shall be deemed to be named in this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and on such Notes, Coupons and Talons as principal debtor in place of the Issuer and this Trust Deed and the relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any proposed supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution. An ;
(B) the Issuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents willClause 15.3(a), if so expressed, release the Issuer (or a previous substitute) be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Security DocumentsNotes, Coupons and Talons of the ETP Securities relevant Series and such Notes, Coupons and Talons; and
(C) the other relevant Programme Documents. The Substituted Obligor shall Issuer shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the ETP Securityholders within 14 calendar days holders of the Notes of the relevant Series in accordance with Condition 12.
(b) The Trustee may, without the previous consent or sanction of the holders of the Notes, Coupons or Talons of any Series, agree with the Issuer to the substitution, in place of the Issuer as the principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of any Series and under such Notes, Coupons and Talons of a Successor in Business PROVIDED THAT:
(i) a trust deed is executed or some other form of undertaking is given by the Successor in Business to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the terms of this Trust Deed and the Notes, Coupons and Talons of the relevant Series, with any consequential amendments which the Trustee may deem appropriate, as fully as if the Successor in Business had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Issuer and had been named on the Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;
(ii) the Trustee shall be satisfied that (x) the Successor in Business has obtained all necessary governmental and regulatory approvals and consents necessary for its assumption of the obligations and liabilities as principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of the relevant Series and under such Notes, Coupons and Talons in place of the Issuer and (y) such approvals and consents are at the time of substitution in full force and effect;
(iii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Successor in Business at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Successor in Business comply with such other requirements as the Trustee may direct or require in the interests of the holders of the Notes of the relevant Series;
(v) without prejudice to the generality of paragraphs (i), (ii), (iii) and (iv) of this Clause 15.3(b), where the Successor in Business is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 6 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Successor in Business is incorporated, domiciled or resident or the taxing jurisdiction of which, or of any authority of or in which, the Successor in Business is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) if the directors of the Successor in Business shall certify to the Trustee that it is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(vii) without prejudice to the rights of reliance of the Trustee under paragraph (vi) of this Clause 15.3(b), the Trustee is satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes of the relevant Series. Upon the execution of such documents and compliance with such the said requirements. On completion of :
(A) the formalities set out Successor in this Condition 14.3 and the Security Documents, the Substituted Obligor Business shall be deemed to be named in these Conditionsthis Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the Security Documentsrelevant Series and on such Notes, the other Programme Documents Coupons and the ETP Securities Talons as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents this Trust Deed and the ETP Securities relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution;
(B) the substitutionIssuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Clause 15.3(b), be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and such Notes, Coupons and Talons; and
(C) the Issuer or the Successor in Business shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the holders of the Notes of the relevant Series in accordance with Condition 12.
Appears in 3 contracts
Sources: Forty First Supplemental Trust Deed, Forty First Supplemental Trust Deed, Supplemental Trust Deed
Substitution. The (A) (1) THE Trustee may, without the consent of the ETP SecurityholdersNoteholders, but subject Receiptholders or Couponholders, at any time agree with CSF, CSI and Cadbury Schweppes to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution in place of the Issuer CSF or CSI (or of any the previous substitutesubstitute under this Clause) as the principal debtor under these presents of (a) another Subsidiary of Cadbury Schweppes, (b) any relevant Obligor or its Successor in Business (in which case the Security Documentsguarantee of such Obligor shall cease and determine), (c) a Subsidiary of a Holding Company of Cadbury Schweppes or its Successor in Business or (d) a Holding Company of Cadbury Schweppes or its Successor in Business (in each of which cases (c) and (d) the other Programme Documents guarantee of Cadbury Schweppes shall cease and determine if the Trustee is satisfied that the interests of the Noteholders will not be materially prejudiced if they became holders of Notes of such Subsidiary or Holding Company without the benefit of the guarantee of Cadbury Schweppes rather than if they were to which it is a party and remain holders of Notes of CSF or, as the ETP Securities case may be, CSI with the benefit of each Series, the guarantee of any other company Cadbury Schweppes (incorporated in any jurisdiction) (any such substitute substituted company being hereinafter called the "Substituted Obligor"), “New Company”) provided that:
(A) that a trust deed is executed or some other form of undertaking is given by the Substituted Obligor to the Trustee, New Company in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities provisions of each Series (these presents with such any consequential amendments as which the Trustee may deem appropriate) appropriate as fully as if the Substituted Obligor New Company had been named in the Security Documents and the ETP Securities these presents as the principal debtor in place of CSF or, as the Issuer;
case may be, CSI (Bor of the previous substitute under this Clause) and provided further that, where the Substituted Obligor assumes New Company is another Subsidiary of Cadbury Schweppes, Cadbury Schweppes unconditionally and irrevocably guarantees all rights, obligations and liabilities in relation amounts payable under these presents to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion satisfaction of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 3 contracts
Sources: Supplemental Trust Deed (Cadbury Schweppes Public LTD Co), Supplemental Trust Deed (Cadbury Schweppes Public LTD Co), Supplemental Trust Deed (Cadbury Public LTD Co)
Substitution. (a) The Trustee may, without the previous consent or sanction of the ETP Securityholdersholders of the Notes, but subject to the prior consent Coupons or Talons of each Authorised Participant and the Margin Loan Providerany Series, agree with the Issuer to the substitution, in place of the Issuer (or of any previous substitute) as the principal debtor under this Trust Deed in relation to the Security DocumentsNotes, the other Programme Documents to which it is a party Coupons and the ETP Securities Talons of each Seriesany Series and under such Notes, Coupons and Talons, of any other company Holding Company or of any subsidiary of the Issuer (incorporated in any jurisdictionhereinafter called the Substituted Issuer) (any such substitute company being the "Substituted Obligor"), provided thatPROVIDED THAT:
(Ai) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Issuer to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of this Trust Deed and the ETP Securities Notes, Coupons and Talons of each Series (the relevant Series, with such any consequential amendments as which the Trustee may deem appropriate) , as fully as if the Substituted Obligor Issuer had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Security Documents Issuer and had been named on the ETP Securities Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;
(Bii) the Trustee shall be satisfied that (x) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with its assumption of the assumption by the Substituted Obligor of liability obligations and liabilities as principal debtor under this Trust Deed in respect ofrelation to the Notes, Coupons and Talons of its obligations under, the ETP Securities of each relevant Series and any Programme Document have been obtained under such Notes, Coupons and Talons in place of the Issuer and (by) such approvals and consents are at the time of substitution in full force and effect;
(Eiii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Substituted Issuer at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct or require in the interests of the ETP Securityholdersholders of the Notes of the relevant Series;
(v) without prejudice to the generality of subparagraphs (i), (ii), (iii) and (iv) of this Clause 13.2(a), where the Substituted Issuer is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 6 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Substituted Issuer is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any authority of or in which, the Substituted Issuer is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) if the directors of the Substituted Issuer shall certify to the Trustee that it is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(Hvii) a legal opinion satisfactory without prejudice to the rights of reliance of the Trustee under paragraph (vi) of this Clause 13.2(a), the Trustee is provided concerning satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes and Coupons of the relevant Series. Upon the execution of such documents and compliance with the said requirements:
(A) the Substituted Issuer shall be deemed to be named in this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and on such Notes, Coupons and Talons as principal debtor in place of the Issuer and this Trust Deed and the relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any proposed supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution. An ;
(B) the Issuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents willClause 13.2(a), if so expressed, release the Issuer (or a previous substitute) be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Security DocumentsNotes, Coupons and Talons of the ETP Securities relevant Series and such Notes, Coupons and Talons; and
(C) the other relevant Programme Documents. The Substituted Obligor shall Issuer shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the ETP Securityholders within 14 calendar days holders of the Notes of the relevant Series in accordance with Condition 12.
(b) The Trustee may, without the previous consent or sanction of the holders of the Notes, Coupons or Talons of any Series, agree with the Issuer to the substitution, in place of the Issuer as the principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of any Series and under such Notes, Coupons and Talons of a Successor in Business PROVIDED THAT:
(i) a trust deed is executed or some other form of undertaking is given by the Successor in Business to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the terms of this Trust Deed and the Notes, Coupons and Talons of the relevant Series, with any consequential amendments which the Trustee may deem appropriate, as fully as if the Successor in Business had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Issuer and had been named on the Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;
(ii) the Trustee shall be satisfied that (x) the Successor in Business has obtained all necessary governmental and regulatory approvals and consents necessary for its assumption of the obligations and liabilities as principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of the relevant Series and under such Notes, Coupons and Talons in place of the Issuer and (y) such approvals and consents are at the time of substitution in full force and effect;
(iii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Successor in Business at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Successor in Business comply with such other requirements as the Trustee may direct or require in the interests of the holders of the Notes of the relevant Series;
(v) without prejudice to the generality of paragraphs (i), (ii), (iii) and (iv) of this Clause 13.2(b), where the Successor in Business is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 6 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Successor in Business is incorporated, domiciled or resident or the taxing jurisdiction of which, or of any authority of or in which, the Successor in Business is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) if the directors of the Successor in Business shall certify to the Trustee that it is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(vii) without prejudice to the rights of reliance of the Trustee under paragraph (vi) of this Clause 13.2(b), the Trustee is satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes of the relevant Series. Upon the execution of such documents and compliance with such the said requirements. On completion of :
(A) the formalities set out Successor in this Condition 14.3 and the Security Documents, the Substituted Obligor Business shall be deemed to be named in these Conditionsthis Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the Security Documentsrelevant Series and on such Notes, the other Programme Documents Coupons and the ETP Securities Talons as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents this Trust Deed and the ETP Securities relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution;
(B) the substitutionIssuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Clause 13.2(b), be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and such Notes, Coupons and Talons; and
(C) the Issuer or the Successor in Business shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the holders of the Notes of the relevant Series in accordance with Condition 12.
Appears in 3 contracts
Sources: Third Supplemental Trust Deed, Second Supplemental Trust Deed, Fifth Supplemental Trust Deed
Substitution. The Trustee may, without the consent of the ETP Securityholders, but Sponsor may at its option (subject to the prior consent conditions set forth below) substitute at any time, and from time to time, one issue of each Authorised Participant multifamily housing revenue bonds (each, a “Substitute Bond”) for (a) an issue of Bonds with respect to which a Bond Event of Default exists, or (b) a Pre-Selected Bond, solely if the Sponsor has elected to effect a substitution of such Pre-Selected Bond in connection with the sale of the related Pre-Selected Mortgaged Property pursuant to Section 3.26 hereof. The Bonds available to be substituted for in accordance with the foregoing sentence (each, a “Released Bond”) shall be released from the Series Certificate Agreement in accordance with the terms thereof, and the Margin Loan Provider, agree Substitute Bond(s) shall be deposited with the Administrator pursuant to the substitution, in place terms of the Issuer (or Series Certificate Agreement in accordance with the terms thereof, if each of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it following conditions is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thatmet:
(Aa) The Substitute Property meets all of ▇▇▇▇▇▇▇ Mac’s then applicable underwriting criteria, program, policy and documentation requirements unless waived in writing by ▇▇▇▇▇▇▇ Mac. In furtherance and not in limitation of the foregoing, ▇▇▇▇▇▇▇ Mac in considering the eligibility of the Substitute Property under such criteria and requirements may take into account a deed variety of factors, including, but not limited to, local market conditions, portfolio concentration in the market where the Substitute Property is executed or undertaking given by located, the Substituted Obligor to condition and quality of the Trustee, in form Substitute Property (which condition and manner satisfactory to quality shall not be less than the Trustee, agreeing Mortgaged Property to be bound by released (the Security Documents and “Released Project”)), the ETP Securities type of each Series Substitute Property (with such consequential amendments which shall be of the same type as the Trustee may deem appropriateReleased Project), the internal risk rating for such Substitute Property as determined by ▇▇▇▇▇▇▇ Mac (which risk rating as so determined shall be equal to or better than the risk rating (as determined by ▇▇▇▇▇▇▇ Mac) as if for the Substituted Obligor had been named Released Project) and pool diversification (the determination of any proposed Substitute Property’s eligibility under such criteria and requirement to be in the Security Documents ▇▇▇▇▇▇▇ Mac’s sole and the ETP Securities as the principal debtor in place of the Issuerabsolute discretion);
(Bb) ▇▇▇▇▇▇▇ Mac shall have been provided by the Substituted Obligor assumes Servicer (or otherwise) all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof applicable third party reports required pursuant to the Security Documents Guide or otherwise required by ▇▇▇▇▇▇▇ Mac, in its sole and takes absolute discretion, to evaluate the proposed Substitute Property including but not limited to:
(i) An environmental report on the proposed Substitute Property in all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligorrespects reasonably satisfactory to ▇▇▇▇▇▇▇ Mac;
(Cii) if any director An engineering report on the proposed Substitute Property in all respects reasonably satisfactory to ▇▇▇▇▇▇▇ Mac;
(iii) A survey of the Substituted Obligor certifies that it will Substitute Property, in all respects reasonably satisfactory to ▇▇▇▇▇▇▇ Mac; and
(iv) An appraisal on the Substitute Property in all respects reasonably satisfactory to ▇▇▇▇▇▇▇ Mac;
(c) Sponsor shall pay all out of pocket fees and expenses of ▇▇▇▇▇▇▇ Mac, including the reasonable costs and expenses of outside counsel in connection with such substitution;
(d) The Substitute Property shall be solvent immediately after subject to satisfactory inspection by ▇▇▇▇▇▇▇ Mac;
(e) The underlying bond documents related to the Substitute Property meet ▇▇▇▇▇▇▇ Mac’s then-applicable program requirements in all material respects or are otherwise waived by ▇▇▇▇▇▇▇ Mac;
(f) Unless waived by ▇▇▇▇▇▇▇ Mac, the terms of the Substitute Bond, including tax status, maturity, interest rate and interest mode, are substantially consistent with the terms of the Released Bond;
(g) After giving effect to such substitution, the Trustee need geographic concentration of the Mortgaged Properties is not have regard greater than that prior to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuersubstitution;
(Dh) The ratio of the unpaid principal balance of the Substitute Bond to the value of the Substitute Property (the “Loan to Value Ratio” or “LTV”) at the time of the proposed substitution, as determined by ▇▇▇▇▇▇▇ Mac in accordance with its then current underwriting methodology, is less than or equal to the lesser of (i) the Trustee will loan to value ratio of the Released Project as of the Closing Date or (ii) the loan to value ratio of the Released Project as of the date of the proposed release of the Released Project as determined by ▇▇▇▇▇▇▇ Mac in accordance with its then existing underwriting methodology and in all events the Loan to Value Ratio does not exceed 85%;
(i) The ratio of the net operating income and the annual debt service (the “Debt Service Coverage” or “DCR”) for the Substitute Property for the last twelve (12) calendar months preceding the proposed substitution, calculated in accordance with ▇▇▇▇▇▇▇ Mac’s then-existing underwriting methodology, is greater than or equal to the greater of (i) the Debt Service Coverage for the Released Project as of the Closing Date for the Released Project or (ii) the current Debt Service Coverage for the Released Project for the prior twelve (12) calendar months, calculated in accordance with ▇▇▇▇▇▇▇ Mac’s underwriting methodology employed by ▇▇▇▇▇▇▇ Mac in determining the Debt Service Coverage for the Substitute Property and in all events the Debt Service Coverage is not less than 1.15%;
(j) No Event of Default shall exist and there shall have been no related Bond Event of Default with respect to such Substitute Bond during the immediately preceding twelve (12) month period;
(k) Contemporaneously with the request for a substitution, Sponsor shall pay (A) to the Servicer a $25,000 underwriting fee with respect to each new Bond to be satisfied underwritten, and (B) to ▇▇▇▇▇▇▇ Mac a deposit to cover associated third party costs and fees, as estimated by ▇▇▇▇▇▇▇ Mac, together with a mortgage review fee equal to the greater of $5,000 per substituted property or 0.10% of the unpaid principal balance of the Substitute Bond. On or prior to the closing date for the substitution, the Sponsor shall pay ▇▇▇▇▇▇▇ Mac the balance, if it requiresany, of any third-party costs and fees incurred in excess of the initial deposit amount, plus a substitution fee (i) equal to the greater of $5,000 or 0.25% of the unpaid principal balance of the Substitute Bond(s) (with a credit for the mortgage review fee previously paid) for a substitution relating to a Bond Event of Default or (ii) equal to the greater of $50,000 or 0.50% of the unpaid principal balance of the Substitute Bond(s) (with a credit for the mortgage review fee previously paid) for a substitution relating to a substitution of a Pre-Selected Bond pursuant to Section 3.26. In addition, the Sponsor shall pay the reasonable fees and out-of-pocket expenses of outside counsel, appraisers, environmental professionals and engineers, plus all reasonable out-of-pocket costs and expenses incurred by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or ▇▇▇▇▇▇▇ Mac in connection with the assumption by foregoing. Such amounts shall be paid on or prior to the Substituted Obligor closing date of liability as principal debtor in respect such substitution. If such substitution fails to close, Sponsor shall pay ▇▇▇▇▇▇▇ Mac such reasonable fees and out-of, and -pocket expenses within (30) days of its obligations under, the ETP Securities Sponsor’s receipt of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effectinvoices therefor;
(El) If the unpaid principal balance of the Substitute Bond is less than the unpaid principal balance of the Released Bond (a “Contraction”) the Issuer and Sponsor shall pay any applicable Total Release Price with respect to the Substituted Obligor will execute and principal portion of the Issuer shall procure Released Bond that is in excess of the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if anyprincipal amount of the Substitute Bond(s) as and when required by the Trustee may require Series Certificate Agreement, and if the Contraction is greater than 5%, then, in order that such substitution is fully effective and comply with such other requirements in addition to the interests fees required under Section 3.19(k) above, Sponsor shall pay or cause to be paid a Prepayment/Substitution Premium to ▇▇▇▇▇▇▇ Mac on the amount by which the unpaid principal balance of the ETP Securityholders as Released Bond exceeds the Trustee may directunpaid principal balance of the Substitute Bond(s) on the date of substitution;
(Fm) in connection with The Sponsor and ▇▇▇▇▇▇▇ Mac shall have executed an addendum to this Agreement and any proposed related agreements to reflect the substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholderscontemplated hereby; and
(Hn) ▇▇▇▇▇▇▇ Mac shall have received an opinion of Bond Counsel acceptable to ▇▇▇▇▇▇▇ Mac to the effect that such substitution does not adversely affect the exclusion of interest accrued on the related Certificates from gross income of the holders thereof for federal income tax purposes.
(o) If requested by ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇▇ Mac shall have received a legal opinion 704(b) analysis with respect to the ownership of the Substitute Property which is satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of ▇▇▇▇▇▇▇ Mac in its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionsole discretion.
Appears in 2 contracts
Sources: Bond Exchange, Reimbursement, Pledge and Security Agreement (America First Multifamily Investors, L.P.), Bond Exchange, Reimbursement, Pledge and Security Agreement (America First Multifamily Investors, L.P.)
Substitution. The Trustee mayIssuer, or any previous substituted company, may at any time, without the consent of the ETP SecurityholdersBondholders, but subject substitute for itself as principal debtor under the Bonds any company (the “ Substitute”), provided that no payment in respect of the Bonds is at the relevant time overdue. The substitution shall be made by a deed poll (the “Deed Poll”), to be substantially in the form exhibited to the prior consent Agency Agreement, and may take place only if (i) the Substitute shall, by means of each Authorised Participant and the Margin Loan ProviderDeed Poll, agree to indemnify each Bondholder against any tax, duty, assessment or governmental charge which is imposed on it by (or by any authority in or of) the jurisdiction of the country of the Substitute’s residence for tax purposes and, if different, of its incorporation with respect to any Bond and which would not have been so imposed had the substitution not been made, as well as against any tax, duty, assessment or governmental charge, and any cost or expense, relating to the substitution, (ii) where the Substitute is not the Guarantor, the Guarantor shall acknowledge in place the Deed Poll that the Substitute’s payment obligations under the Bonds are unconditionally guaranteed by the Guarantor under the Guarantee and shall enter into a guarantee of the Issuer Substitute’s indemnification obligations described in (or i) above, substantially in the form scheduled to the Agency Agreement (the “Supplemental Guarantee”), (iii) all action, conditions and things required to be taken, fulfilled and done (including the obtaining of any previous substitutenecessary consents) as to ensure that the principal debtor under the Security DocumentsDeed Poll, the other Programme Documents to which it Bonds and (where the Substitute is a party not the Guarantor) the Guarantee and the ETP Securities of each SeriesSupplemental Guarantee represent valid, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form legally binding and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the enforceable obligations of the Substituted Obligor;
(C) if any director of Substitute and/or the Substituted Obligor certifies that it will be solvent immediately after such substitutionGuarantor, the Trustee need not have regard to the Substituted Obligor’s financial conditionas applicable, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained taken, fulfilled and (b) such approvals done and consents are at the time of substitution in full force and effect;
, (Eiv) the Substitute shall have become party to the Agency Agreement, with any appropriate consequential amendments, as if it had been an original party to it, (v) legal opinions addressed to the Bondholders shall have been delivered to them (care of the Principal Paying Agent) from a lawyer or firm of lawyers with a leading securities practice in each jurisdiction referred to in (i) above and in England as to the fulfilment of the preceding conditions of this Condition 10(c) and (vi) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that have given at least 14 days’ prior notice of such substitution is fully effective and comply with such other requirements to the Bondholders, stating that copies, or pending execution the agreed text, of all documents in relation to the interests substitution which are referred to above, or which might otherwise reasonably be regarded as material to Bondholders, will be available for inspection at the specified office of the ETP Securityholders as the Trustee may direct;
(F) Principal Paying Agent. References in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree Condition 8 to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor Bonds shall be deemed to be named in these Conditions, include obligations under the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionDeed Poll.
Appears in 2 contracts
Sources: Agency Agreement, Agency Agreement
Substitution. The Trustee Subject to the terms and conditions set forth in this Section 2.16, Borrowers may, without from time to time, replace Individual Properties with Qualified Substitute Properties (a “Property Substitution”), provided, in the consent case of each Property Substitution, the following conditions are met:
(a) no Event of Default shall exist on such date either before or after the Property Substitution;
(b) Borrower shall have given Lender at least sixty (60) days’ prior written notice of any Property Substitution;
(c) the Loan-to-Value Ratio after giving effect to the proposed Property Substitution for the aggregate of all Individual Properties shall be equal to or greater than the Loan-to-Value Ratio for the aggregate of all Individual Properties immediately prior to the Property Substitution;
(d) after giving effect to the proposed Property Substitution, the Debt Service Coverage Ratio for the aggregate of all Individual Properties shall be no less than the Debt Service Coverage Ratio immediately prior to the Property Substitution;
(e) each of the ETP Securityholdersrepresentations and warranties contained in this Agreement shall be true and correct in all material respects with respect to Borrowers (including the applicable Borrower acquiring the applicable Qualified Substitute Property), but subject to as well as the prior consent of each Authorised Participant Qualified Substitute Property, on and the Margin Loan Provider, agree to the substitution, in place as of the Issuer date of the Property Substitution (or and Borrower’s acquisition of any previous substitutesuch Qualified Substitute Property shall be deemed to constitute its representation to such effect);
(i) Borrowers shall have executed, acknowledged and delivered to Lender, with respect to each Qualified Substitute Property, a Mortgage and an Assignment of Leases and Rents, and such other customary documents and agreements as are generally required by reasonable commercial mortgage lenders, and (ii) Guarantor and Borrowers shall have executed such additional customary Loan Documents and such modifications to and reaffirmations of the principal debtor under the Security Documents, the other Programme existing Loan Documents to which it is a party as a reasonable commercial mortgage lender would customarily require;
(g) each Mortgage shall secure the entire Indebtedness; provided, however, that in the event that the jurisdiction in which the applicable Qualified Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Mortgage shall be equal to 125% of the Allocated Loan Amount of the Individual Property replaced by the Qualified Substitute Property as of immediately prior to such Property Substitution;
(h) Lender shall have received the following:
(i) copies of all Leases in effect with respect to the Qualified Substitute Property (together with such estoppels and subordination, non-disturbance and attornment agreements as a reasonable commercial mortgage lender would customarily require);
(ii) copies of UCC and other credit and public records search reports requested by Lender conducted by a nationally recognized search firm, conducted in the state and county where the Qualified Substitute Property is located and in the state where Borrower is organized or incorporated, evidencing that (A) no liens (other than as permitted hereunder), judgments, tax liens or tax judgments have been filed against Borrowers (or the owner of the Qualified Substitute Property if such Person is not a current Borrower), (B) no petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, has been filed by or against, consented to, or acquiesced in by Borrowers (or the owner of the Qualified Substitute Property if such Person is not a current Borrower) or any of such Person’s partners, members or shareholders, as applicable, and (C) there is no litigation pending against Borrowers (or the owner of the Qualified Substitute Property if such Person is not a current Borrower);
(iii) certificates of insurance demonstrating insurance coverage in respect of the Qualified Substitute Property of types, in amounts, with insurers and otherwise in compliance with the requirements set forth herein;
(iv) an ALTA mortgagee policy of title insurance for the Qualified Substitute Property issued by a title company substantially similar to the title company that issued Lender’s initial title insurance policy with respect to the Property (the “Closing Title Policy”) insuring the first priority lien in favor of Lender created by the Mortgage, which title policy shall (A) be in an amount equal to the insured amount under the Closing Title Policy, (B) contain all endorsements attached to the Closing Title Policy to the extent available and (C) not contain any title exceptions other than Permitted Encumbrances and such other exceptions reasonably acceptable to Lender that do not materially and adversely affect (i) the ability of Borrower to pay the Indebtedness in a timely manner or (ii) the use of the Qualified Substitute Property for the use currently being made thereof or the value of the Qualified Substitute Property;
(v) an ALTA survey of the Qualified Substitute Property prepared by a registered independent surveyor and containing a surveyor’s certification substantially similar in form and substance to the surveyor’s certification attached to the survey received by Lender with respect to the Property in connection with the closing of the Loan;
(vi) evidence reasonably satisfactory to Lender that the Qualified Substitute Property is in compliance in all material respects with all applicable zoning requirements (including, where obtainable, zoning endorsements and letters from the applicable zoning authorities);
(vii) copies of the material Permits for the use and operation of the Qualified Substitute Property and the ETP Securities certificate of each Seriesoccupancy, if required and obtainable, for the Qualified Substitute Property;
(viii) copies of all contracts and agreements relating to the Qualified Substitute Property; entered into or assumed by Borrower in connection with the Property Substitution or to which Borrower will be subject after the Property Substitution;
(ix) an environmental report addressed to Lender and its successors and assigns reasonably satisfactory to Lender performed by a reputable environmental Engineer disclosing that there are no Hazardous Substances or underground storage tanks in violation of Environmental Laws located in, on or under the Qualified Substitute Property and that the Qualified Substitute Property is in compliance with all Environmental Laws;
(x) an engineering report addressed to Lender and its successors and assigns reasonably satisfactory to Lender performed by a reputable independent structural engineer evidencing that the Qualified Substitute Property is free of material structural defects and that all building systems contained therein are in good working order in all material respects subject to ordinary wear and tear;
(xi) (A) operating statements for the Qualified Substitute Property for the prior three years, prepared by an independent certified public accountant of recognized national standing, to the extent such statements can be obtained without undue burden or cost, (B) current results from operations and (C) any informal accounting requested by Lender reasonably necessary for Lender to verify the accuracy of any other company (incorporated information required to be provided by or on behalf of Borrower in any jurisdiction) (any such substitute company being connection with effecting the "Substituted Obligor"), provided that:Property Substitution;
(Axii) a deed is executed or undertaking given by the Substituted Obligor such other reasonable and customary certificates, opinions, documents and instruments relating to the TrusteeLoan necessary to effect the Property Substitution;
(xiii) the Management Agreement, the Manager’s Subordination, the Franchise Agreement and the Franchisor’s Subordination, each in form and substance reasonably satisfactory to Lender;
(i) Lender shall have received (i) such customary opinions of counsel as a reasonable commercial mortgage lender would typically require, in form and manner satisfactory content acceptable to the Trustee, agreeing a reasonable commercial mortgage lender (including a new non-consolidation opinion if one was required to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or delivered in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, Loan and of its obligations under, the ETP Securities of each Series applicable REMIC opinions with customary qualifications and any Programme Document have been obtained assumptions); and (bii) such approvals and consents are at confirmation by each of the time applicable Rating Agencies that the Property Substitution will not result in any qualification, withdrawal or downgrading of substitution any existing ratings of securities created in full force and effectany applicable Secondary Market Transaction;
(Ej) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee no Individual Property may require in order that such substitution is fully effective and comply be replaced with such other requirements in the interests of the ETP Securityholders as the Trustee may directmore than one Qualified Substitute Property;
(Fk) no Property Substitution may occur within twelve (12) months following the Closing Date;
(l) no more than an aggregate of 50% of the Loan Amount may be subject to Property Substitutions during the term of the Loan;
(m) If the owner of the Substitute Property is not a current Borrower then such owner must be a Single-Purpose Entity that assumes the Loan in connection with any proposed substitution of the IssuerProperty Substitution and that is wholly owned (directly or indirectly) by Ashford Hospitality Limited Partnership, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP SecurityholdersDelaware limited partnership;
(Gn) Borrowers shall have paid or reimbursed Lender for all costs and expenses actually incurred by Lender in connection with the Issuer foregoing (including the reasonable fees and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests expenses of legal counsel and all fees and expenses of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents willRating Agencies, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionany).
Appears in 2 contracts
Sources: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Substitution.
(a) The Trustee may, may without the consent of the ETP Securityholders, but subject Noteholders at any time agree with the Issuer and the Guarantor to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution in place of the Issuer and/or the Guarantor (or of any the previous substitutesubstitute under this Clause) as the principal debtor or guarantor (as applicable) under the Security Documents, the other Programme Documents to which it is a party Notes and the ETP Securities of each Series, this Trust Deed of any other company being a Subsidiary, holding company or Subsidiary of such holding company of the Guarantor (incorporated in any jurisdiction) (any such substitute substituted company being hereinafter called the "Substituted Obligor"), New Company) provided that:
(A) that a trust deed is executed or some other form of undertaking is given by the Substituted Obligor to the Trustee, New Company in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents provisions of this Trust Deed with any consequential amendments which the Trustee may deem appropriate as fully as if the New Company had been named in this Trust Deed as the principal debtor or guarantor (as applicable) in place of the Issuer or Guarantor (as applicable) (or of the previous substitute under the Clause) and provided further that the Guarantor unconditionally and irrevocably guarantees all amounts payable under this Trust Deed to the satisfaction of the Trustee.
(b) The following further conditions shall apply to subclause 8.3(a) above:
(i) the Issuer, the Guarantor and the ETP Securities of each Series (New Company shall comply with such consequential amendments other requirements as the Trustee may deem appropriate) as if the Substituted Obligor had been named direct in the Security Documents and the ETP Securities as the principal debtor in place interests of the Issuer;
(B) the Substituted Obligor assumes all rightsNoteholders, obligations and liabilities in relation to the Secured Propertyincluding, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid chargewithout limitation, pledge or other security interest over the Secured Property as was originally created execution by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitutionIssuer, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those Guarantor and/or New Company of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deedsdeed, documents and instruments (if any) as the Trustee may require in order that the substitution may be fully effective;
(ii) where the New Company is incorporated, domiciled or resident in, or subject generally to the taxing jurisdiction of, a territory other than or in addition to a Relevant Jurisdiction, then, subject to any necessary governmental approval (which the Issuer undertakes to use all reasonable efforts to obtain), and unless otherwise agreed by the Trustee undertakings or covenants shall be given by the New Company in terms corresponding to the provisions of Condition 9 (Taxation) with the substitution for (or, as the case may be, the addition to) the references to the Relevant Jurisdiction of references to that other or additional territory in which the New Company is incorporated, domiciled or resident or to whose taxing jurisdiction it is subject (subject to such substitution is fully effective exceptions from that undertaking or covenant as reflect exceptions under the laws of that territory or taxing jurisdiction and comply with as are similar in scope and effect to the exceptions set out in Condition 9 (Taxation)) and Condition 7(b) (Redemption for Tax Reasons) shall be modified accordingly so that such Condition shall make reference to that other requirements in or additional territory, and any territory, political sub-division or authority therein or thereof having the interests power to tax;
(iii) two Authorised Signatories of the ETP Securityholders as New Company (or other officers acceptable to the Trustee) shall certify in writing to the Trustee that the New Company is solvent at the time at which the relevant transaction is proposed to be effected (which certificate the Trustee may direct;
(F) in connection with rely upon absolutely). The Trustee shall not be under any proposed substitution duty to have regard to the financial condition, profits or prospects of the Issuer, New Company or to compare the Trustee may, without the consent same with those of the holders of Issuer or the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements previous substitute under this Clause as the Trustee may direct in the interests of the ETP Securityholdersapplicable; and
(Hiv) a legal opinion satisfactory the Trustee shall be entitled to refuse to approve any New Company if, pursuant to the Trustee is provided concerning any proposed substitution. An agreement law of the country of incorporation of the New Company, the assumption by the New Company of its obligations hereunder imposes responsibilities on the Trustee pursuant to this Condition 14.3 over and the Security Documents willabove those which have been assumed hereunder.
(c) Any such trust deed or undertaking shall, if so expressed, operate or release the Issuer (or a the previous substitute) substitute as aforesaid from any or all of its obligations as principal debtor under the Security Documents, the ETP Securities and the other relevant Programme Documentsthis Trust Deed. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within Not later than 14 calendar days of after the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor New Company shall give notice thereof in a form previously approved by the Trustee to the Noteholders in the manner provided in Condition 17 (Notices). Upon the execution of such documents and compliance with such requirements, the New Company shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities this Trust Deed as the principal debtor in place of the Issuer (or in place of any the previous substitutesubstitute under this Clause) under this Trust Deed and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities this Trust Deed shall be deemed to be amended modified in such manner as shall be necessary to give effect to the substitutionabove provisions and, without limitation, references in this Trust Deed to the Issuer shall, unless the context otherwise requires, be deemed to be or include references to the New Company.
Appears in 2 contracts
Sources: Trust Deed, Trust Deed
Substitution. The Trustee maySubject to Section 12.07 below, without Tenant shall have the consent right to substitute like-kind assets for the Property Locations; provided, however, that (1) Tenant shall not have any such substitution right if the substitution of any Property Location would cause Landlord to recognize income or gain from a “prohibited transaction” as defined under Section 857(b)(6) of the ETP SecurityholdersInternal Revenue Code of 1986, but subject as the same may be amended from time to time (the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place “Code”) or such substituted like-kind asset is not “real property” under Section 856 of the Issuer Code, and (2) Landlord may irrevocably elect to retain the Property Locations that Tenant requests for substitution. If Tenant elects to conduct a substitution such that another unencumbered property location or of any previous substitutelocations (the “Substitute Property”) as the principal debtor under the Security Documents, the other Programme Documents to which it is substituted for a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company Property Location being the "Substituted Obligor"), provided thatreleased:
(Aa) a deed is executed or undertaking given by the Substituted Obligor to the TrusteeTenant shall reimburse Landlord for substitution fees, in form costs and manner satisfactory to the Trusteeexpenses (including without limitation, agreeing to be bound by the Security Documents fees and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference expenses related to legal opinions) that (a) all necessary governmental charged by Landlord’s Mortgagee and regulatory approvals other out-of-pocket fees and consents necessary for or costs reasonably and actually incurred by Landlord in connection with such substitution;
(b) Subject to the assumption requirements set forth in this Section 12.05, Landlord covenants that it shall provide Tenant with such cooperation as Tenant may reasonably request to qualify any exercise by Tenant of a substitution right under this Section 12.05 as a transaction qualifying under Section 1031 of the Substituted Obligor Code;, provided, however, that (i) Landlord shall not be obligated to pay, suffer or incur any additional expenses or liabilities as a result of cooperating in Tenant’s exchange and Landlord shall not be obligated to acquire any other real property in connection with Tenant’s exchange; (ii) Landlord shall not have any liability to Tenant for failure of the exchange to qualify under the Code; (iii) except as principal debtor otherwise expressly provided in respect ofthis Lease, and any assignment(s) made by Tenant in connection with such exchange shall not relieve Tenant of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained under this Lease; and (b) such approvals and consents are at the time of substitution in full force and effect;
(Eiv) the Issuer and completion of one or more tax-deferred exchanges is not a condition to the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests performance by Tenant of the ETP Securityholders as the Trustee may direct;
(F) obligations of Tenant set forth in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholdersthis Lease; and
(Hc) a legal opinion satisfactory The substitution shall comply with the substitution requirements, if any, of Landlord’s Mortgagee related to substitution, as well as the following:
(i) the Substitute Property shall be made subject to this Lease with no decline in Base Rent or any other Rent due hereunder;
(ii) the appraised value of the Substitute Property shall be equal to or greater than the appraised value of the Property Location being released (each such appraisal having been prepared within one hundred eighty (180) days prior to the Trustee is provided concerning any proposed substitution. An agreement release and substitution date);
(iii) the Substitute Property shall have a store level profitability equal to or greater than the store level profitability of the Property Location being released;
(iv) to the extent required by its Mortgagee, Landlord shall have obtained (A) the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all written consent of its obligations Mortgagee to such substitution, and (B) confirmation from each statistical rating agency that has assigned a rating to securities sold in any Securitization in which any loan related to a Mortgage has been included that such Substitute Property shall not result in the downgrade, withdrawal or qualification of any securities backed by such respective loan;
(v) no Default under this Lease has occurred and is continuing;
(vi) the Security DocumentsProperty Location being substituted shall be released from this Lease;
(vii) with respect to the Substitute Property, Landlord and its Mortgagee shall have received an engineering report and an environmental report, dated not more than one hundred eighty (180) days prior to the ETP Securities proposed date of substitution, acceptable to Landlord and its Mortgagee; and
(viii) Landlord shall have received an officer’s certificate of Tenant certifying that the other relevant Programme Documents. The Substituted Obligor shall give notice square footage of the substitution to Substitute Property complies with the ETP Securityholders within 14 calendar days of the execution of such documents and compliance provisions in Section 12.07 hereof, along with such requirements. On completion of the formalities set out square footage calculations in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionsupport thereof.
Appears in 2 contracts
Sources: Master Lease (Spirit Finance Corp), Master Lease (Spirit Finance Corp)
Substitution. The Trustee may, without Upon receipt of notification from the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place of the Issuer (or Collateral Agent of any previous substitute) as default by the principal debtor Company under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Financing Documents and that the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents Collateral Agent desires to exercise its rights and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof remedies pursuant to the Security Documents and takes all such action as (i) to have itself or its designee substituted for the Trustee may require so Company under the Assigned Agreement or (ii) to sell, assign, transfer or otherwise dispose of the Assigned Agreement to any other person, including any assignee which is a purchaser at a foreclosure sale or by deed in lieu of foreclosure (an “Assignee”), then Consenting Party agrees that the Security constitutes a valid chargeCollateral Agent, pledge or other security interest over any of the Secured Property as was originally created by Parties or their respective designee or any Assignee (each, a “Substitute Owner”) may be substituted for the Issuer for Company under the Assigned Agreement and the Consenting Party shall continue to perform its obligations under the Assigned Agreement in favor of the Substitute Owner if such Substitute Owner assumes in writing the obligations of the Substituted Obligor;
Company under the Assigned Agreement (C) if including the obligation to cure any director then-existing payment and performance defaults but excluding the obligation to cure any then-existing performance defaults that are not reasonably susceptible of cure). Consenting Party acknowledges that none of the Substituted Obligor certifies that it will be solvent immediately after Collateral Agent or the Secured Parties are liable under the Assigned Agreement and shall not become liable thereunder unless and until such substitutionparty shall become a Substitute Owner as described in this Section 4 hereof, and then, the Trustee need Collateral Agent, the Secured Parties, their successors or designees, and any Assignee shall not have regard personal liability to the Substituted Obligor’s financial condition, profits or prospects or compare them with those Consenting Party for the performance of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security DocumentsAssigned Agreement and the sole recourse of the Consenting Party in seeking enforcement of such obligations shall be to such parties’ interest in the Project. Upon any sale, assignment, transfer or other disposition to an Assignee, the ETP Securities Collateral Agent, its designees, and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor Secured Parties shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or relieved of any previous substitute) and these Conditions, all obligations arising under the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionAssigned Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Exelon Generation Co LLC), Indenture (Exelon Generation Co LLC)
Substitution. The Trustee mayIssuer (which expression in this Condition 15 shall include any company previously substituted hereunder) and the Guarantor may at any time, without the consent of the ETP SecurityholdersHolders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place of substitute for the Issuer (1) the Guarantor or (2) any company or other body corporate incorporated in the European Economic Area and that, at the time of any previous substitutesuch substitution, is a wholly-owned direct or indirect subsidiary of the Guarantor (the "Substitute") as upon prior notice to the principal debtor under the Security DocumentsFiscal Agent, the other Programme Documents to which it is a party and Paying Agents and, in accordance with Condition 14 (Notices), the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor")Holders, provided that:
(Ai) no payment in respect of the Securities is at the relevant time overdue;
(ii) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, Substitute agreeing to be bound by the Security Documents Conditions, the Securities, the Fiscal Agency Agreement and the ETP Securities Deed of each Series (with such consequential amendments as the Trustee may deem appropriate) Covenant as if the Substituted Obligor Substitute had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security DocumentsSecurities, the other Programme Documents Fiscal Agency Agreement and the ETP Securities Deed of Covenant as the principal debtor in place of the Issuer (or the "Deed Poll");
(iii) where the Substitute is not the Guarantor, the obligations of any previous substitute) and these the Substitute under the Deed Poll, the Conditions, the Security DocumentsSecurities, the other Programme Documents Fiscal Agency Agreement and the ETP Deed of Covenant are unconditionally and irrevocably guaranteed by the Guarantor under a deed of guarantee executed by the Guarantor (the "New Deed of Guarantee");
(iv) if the Substitute is subject generally to the taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the "Substituted Territory") other than the taxing jurisdiction of the Issuer (the "Issuer's Territory") or the Guarantor (the "Guarantor's Territory"), the Substitute shall in the Deed Poll give an undertaking in terms corresponding to Condition 8 (Taxation) with the substitution of the references in that Condition to the laws of the Issuer's Territory for equivalent or similar references to the laws of the Substituted Territory whereupon the Conditions, the Securities and the Fiscal Agency Agreement shall be deemed read accordingly and any references to be amended the Issuer's Territory herein and therein being substituted for references to the Substituted Territory, as necessary applicable;
(v) the Substitute shall have become party to the Fiscal Agency Agreement, with any appropriate consequential amendments as agreed between the Fiscal Agent and the Substitute to give effect to the substitution;
(vi) the issue of legal opinions addressed to the Fiscal Agent from one or more international law firms as to the laws of England and of the relevant jurisdictions of the Guarantor and the Substitute, as applicable, selected by the Substitute or the Guarantor, and confirming (x) that each of the Substitute and the Guarantor (as the case may be) has capacity to assume all rights, duties and obligations under the Deed Poll, the Fiscal Agency Agreement and the Securities or the New Deed of Guarantee (as the case may be) and has obtained all necessary corporate or governmental authorisation in its jurisdiction to assume all such rights and obligations and (y) the legality, validity and enforceability of such obligations;
(vii) the Substitute (if incorporated in a jurisdiction other than England) shall have appointed an agent to receive, for and on its behalf, service of process in any Proceedings (as defined in Condition 17(b) (Jurisdiction)) in England;
(viii) the Substitute and the Guarantor, after having given each Rating Agency at least 14 days' notice of such substitution, not having received confirmation from any Rating Agency that the substitution will adversely affect the eligibility for, or attribution of, the amount of "equity credit" (or such other nomenclature that the Rating Agency may then use to describe the degree to which an instrument exhibits the characteristics of an ordinary share) as is attributed to the Securities immediately prior to such substitution; and
(ix) two authorised signatories of the Issuer or two authorised signatories of the Substitute shall have delivered to the Fiscal Agent a certificate stating that the Issuer or, as the case may be, the Substitute has concluded that such substitution (A) will not result in the Substitute becoming entitled, as at the date such substitution becomes effective, to redeem the Securities pursuant to a Tax Event, a Capital Event, an Accounting Event, a Substantial Purchase Event or a Withholding Tax Event and (B) will not result in the terms of the Securities immediately following such substitution being materially less favourable to Holders generally than the terms of the Securities immediately prior to such substitution.
Appears in 2 contracts
Sources: Supplemental Fiscal Agency Agreement, Fiscal Agency Agreement
Substitution. The Trustee mayEach Bank may transfer, without by way of novation, all or any part of its rights, benefits and/or obligations under this Agreement to another person subject to a minimum transfer amount of five million Dollars ($5,000,000) to be transferred (a “Substitute”) and provided that no Default has occurred and is continuing the consent of the ETP Securityholders, but subject Borrower (which consent shall not be unreasonably withheld or delayed). Any such novation shall be effected upon five (5) Banking Days’ prior notice by delivery to the prior consent Agent of each Authorised Participant a duly completed Substitution Certificate duly executed by such Bank, the Substitute and the Margin Loan ProviderAgent (for itself, agree the Borrower and the other Banks) and following receipt by the transferring Bank from the Substitute of an amount equal to the substitutionpurchase price to be paid by the Substitute for the Contribution being transferred. On the effective date specified in a Substitution Certificate so executed and delivered, to the extent that they are expressed in place such Substitution Certificate to be the subject of the Issuer (or of any previous substitute) as novation effected pursuant to this clause 15.4:
15.4.1 the principal debtor under the Security Documents, the other Programme Documents existing parties to which it is a party this Agreement and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor Bank party to the Trustee, in form relevant Substitution Certificate shall be released from their respective obligations towards one another under this Agreement (“discharged obligations”) and manner satisfactory their respective rights against one another under this Agreement (“discharged rights”) shall be cancelled;
15.4.2 the Substitute party to the Trustee, agreeing to be bound by the Security Documents relevant Substitution Certificate and the ETP Securities existing parties to this Agreement (other than the Bank party to such Substitution Certificate) shall assume obligations towards each other which differ from the discharged obligations only insofar as they are owed to or assumed by such Substitute instead of each Series (with to or by such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersBank; and
(H) a legal opinion satisfactory 15.4.3 the Substitute party to the Trustee is provided concerning any proposed substitution. An agreement by relevant Substitution Certificate and the Trustee pursuant existing parties to this Condition 14.3 and Agreement (other than the Security Documents willBank party to such Substitution Certificate) shall acquire rights against each other which differ from the discharged rights only insofar as they are exercisable by or against such Substitute instead of by or against such Bank and, if so expressed, release on the Issuer (or a previous substitute) from any or all of its obligations under the Security Documentsdate upon which such novation takes effect, the ETP Securities and Substitute shall pay to the Agent for its own account a transfer fee of three thousand Dollars ($3,000). The Agent shall promptly notify the other relevant Programme Documents. The Substituted Obligor shall give notice parties hereto of the substitution receipt by it of any Substitution Certificate and shall promptly deliver a copy of such Substitution Certificate to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionBorrower.
Appears in 2 contracts
Sources: Facilities Agreement (Aries Maritime Transport LTD), Junior Secured Loan Agreement (Omega Navigation Enterprises, Inc.)
Substitution. The Trustee may, without (A) Without the consent of the ETP Securityholders, Trustee or an Extraordinary Resolution or a Written Resolution (but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderClause 18(F)), agree to the substitution, in place of the Issuer (or of any previous substituteSubstitute (as defined below) under this sub-clause), may substitute itself as the principal debtor under these presents, by any Successor (in this Clause called the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction“Substitute”) (any such substitute company being the "Substituted Obligor"), provided thatPROVIDED THAT:
(Ai) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Substitute to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of these presents and the ETP Securities of each Series (Notes with such any consequential or other amendments which may be appropriate as the Trustee may deem appropriate) fully as if the Substituted Obligor Substitute had been named in the Security Documents and the ETP Securities these presents as the principal debtor in place of the IssuerIssuer (or any such previous Substitute);
(Bii) arrangements are made to the satisfaction of the Trustee for the Noteholders to have or be able to have the same or equivalent rights against the Substitute as they have against the Issuer (or any such previous Substitute);
(iii) the Substituted Obligor assumes all rights, Substitute shall have acquired the rights and assumed the obligations of the Issuer (or any such previous Substitute) under or in connection with the Loan Agreement and liabilities in relation the Account and such rights shall have been effectively charged to the Secured Property, acknowledges the Security created Trustee in respect thereof pursuant a manner satisfactory to the Security Documents Trustee and takes all such action amendments to the Loan Agreement and these presents as the Trustee may reasonably require so that shall have been made (including, without prejudice to the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations generality of the Substituted Obligorforegoing, but subject to Clause (vi) below, the substitution therein where relevant of references to the territory where the Substitute is incorporated, domiciled or resident for references to Ireland);
(Civ) if the Issuer (or any director such previous Substitute) and the Substitute comply with such other reasonable requirements as the Trustee may direct in the interests of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the IssuerNoteholders;
(Dv) the Trustee will be is satisfied (if it requires, by reference to legal opinions) that (a) the Substitute has obtained all necessary governmental and regulatory and internal corporate approvals and consents necessary for its assumption of the obligations and liabilities under these presents in place of the Issuer (or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, any such previous Substitute) and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(Evi) (without prejudice to the Issuer and generality of paragraphs (i) to (v) (inclusive) of this sub-clause) where the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any Substitute is incorporated, domiciled or resident in a territory other Programme Party will execute such other deeds, documents and instruments than Ireland (if any) which territory must be a Qualifying Jurisdiction (as the Trustee may require in order that such substitution is fully effective and comply with such other requirements defined in the interests Loan Agreement)), undertakings or covenants are given in terms corresponding to the provisions of Condition 7 with the ETP Securityholders as substitution for the Trustee may directreferences to Ireland of references to the territory in which the Substitute is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any political subdivision or authority of or in which, the Substitute is otherwise subject generally;
(Fvii) the Substitute shall be a company or other institution which at the time being exempts the payments by the Borrower under the Loan from value added tax in connection with any proposed substitution the Russian Federation;
(viii) as a consequence of the Issuersuch substitution, the Notes continue on the substitution and promptly thereafter to be listed on any stock exchange on which they are then listed;
(ix) the Trustee may, without is satisfied that the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would said substitution is not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements Noteholders as the Trustee may direct in the interests of the ETP Securityholdersa class; and
(Hx) a legal opinion satisfactory the Issuer or the Substitute shall have delivered to the Trustee is provided concerning any proposed substitution. An and to the Borrower an opinion of an independent lawyer to the effect that neither the Issuer, the Substitute, as the case may be, nor the Noteholders will recognise income, gain or loss for tax purposes as a result of the substitution and the Issuer, the Substitute and the Noteholders will be subject to taxes on the same amount and in the same manner and at the same times as would have been the case if such substitution had not occurred.
(B) Any such agreement by the Trustee pursuant to sub-clause (A) of this Condition 14.3 and Clause shall, to the Security Documents will, if extent so expressed, operate to release the Issuer or previous Substitute (or a previous substituteas the case may be) from any or all of its obligations under these presents. Not later than fourteen days after the Security Documentsexecution of any such documents as aforesaid and after compliance with the Trustee’s said requirements, notice thereof shall be given by the ETP Securities and Issuer or previous Substitute (as the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution case may be) to the ETP Securityholders within 14 calendar days of Noteholders in the manner provided in Condition 14.
(C) Upon the execution of such documents and compliance with such the said requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor Substitute shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents as the principal debtor in place of the Issuer or previous Substitute (or of any previous substituteas the case may be) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents shall thereupon be deemed to be amended in such manner as shall be necessary to give effect to the substitution and, without prejudice to the generality of the foregoing, any references in these presents to the Issuer shall be deemed to be references to the Substitute.
(D) If any two directors (or other equivalent officers) of the Substitute shall certify to the Trustee that the Substitute is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to the financial condition, profits or prospects of the Substitute or to compare the same with those of the Issuer or (as the case may be) the previous Substitute.
(E) The Issuer or previous Substitute, as the case may be, shall not be entitled to substitute itself if, pursuant to the law of the country of incorporation, domicile or residence of the Substitute, the assumption by the Substitute of its obligations imposes responsibilities on the Trustee over and above those which have been assumed under these presents.
(F) The Issuer or previous Substitute, as the case may be, shall only be entitled to substitute itself in accordance with the provisions of Clause 18(A) to (E) (inclusive) of these presents without the consent of the Borrower if:
(i) at least 3 months prior to the date of a proposed substitution pursuant to this Clause 18, the Issuer or previous Substitute has notified the Borrower in writing of its intention to substitute itself; and
(ii) prior to the date of such proposed substitution, the Borrower either has not notified the Issuer or previous Substitute of a Substitute or has notified the Issuer or previous Substitute of a Substitute that the Issuer or previous Substitute is not satisfied shall have complied with the provisions of this Clause 18. For the purposes of this Clause 18(F), the Trustee shall be entitled to rely solely on a certificate of two Authorised Signatories to determine whether the conditions set forth at sub-clauses (i) and (ii) in this Clause 18(F) have been satisfied.
Appears in 2 contracts
Sources: Trust Deed (Open Joint Stock Co Vimpel Communications), Trust Deed (Open Joint Stock Co Vimpel Communications)
Substitution. The Trustee mayIssuer may at any time substitute, without the consent of the ETP SecurityholdersNoteholders or the Couponholders, but subject the Guarantor or a Subsidiary of the Guarantor (such substituted company being hereinafter called the "New Company") to assume liability for the due and punctual payment of all payments and the performance of all the Issuer's obligations under the Notes and the Coupons then outstanding. Upon any such substitution, the New Company shall succeed to the prior consent rights and obligations of each Authorised Participant the Issuer (or any previous substitute) under the Notes and the Margin Loan Provider, agree to Issuer (or any previous substitute) shall be released from its liability on the substitutionNotes. Such substitution shall be permitted only if, in place addition to assuming the obligations of the Issuer (or of any previous substitute) as the principal debtor under the Security DocumentsNotes:
(i) the New Company shall, the other Programme Documents to which it is by means of a party and the ETP Securities of each Series, of any other company deed poll (incorporated in any jurisdiction) (any such substitute company being the "Substituted ObligorSubstitution Deed Poll"), provided that:
agree to indemnify each Noteholder and Couponholder against (A) a deed is executed any taxes, duties, fees, assessments or undertaking given by the Substituted Obligor governmental charges of whatever nature which are imposed on such holder with respect to the Trusteesuch Note, in form and manner satisfactory which would not have been so imposed had such substitution not been made, (B) any taxes, duties, fees, assessments or governmental charges of whatever nature imposed on or relating to the Trustee, agreeing to be bound by the Security Documents such substitution and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriateC) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place any costs or expenses of the Issueract of such substitution;
(Bii) unless such New Company is the Guarantor, the Guarantor shall in the Substitution Deed Poll irrevocably guarantee all payments in respect of the Notes;
(iii) the Substituted Obligor assumes New Company shall warrant, by means of the Substitution Deed Poll, that all rights, necessary governmental approvals and consents for the assumption by the New Company of its obligations and liabilities the giving and implementation of the Guarantor's guarantee (if applicable) have been obtained and are in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents full force and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for effect and the obligations of the Substituted Obligor;New Company under the Notes and of the Guarantor under its guarantee to guarantee payments in respect of the Notes (if applicable) are legal, valid, binding and enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and general principles of equity; and
(Civ) if any director the New Company shall have obtained legal opinions from independent legal advisers of recognised standing in the country of incorporation of the Substituted Obligor certifies New Company, Hong Kong and England that it will be solvent immediately after such substitutionthe obligations of the New Company and, unless the New Company is the Guarantor, the Trustee need not Guarantor in respect of the Notes and the Substitution Deed Poll, as the case may be, are legal, valid and binding and that all consents and approvals as aforesaid have regard been obtained. Not more than 30 nor less than 15 days prior to the Substituted Obligor’s financial condition, profits or prospects or compare them with those effective date of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption substitution by the Substituted Obligor of liability as principal debtor in respect ofNew Company, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure give notice to the Noteholders and the Couponholders, in accordance with Condition 12, of the substitution, stating that copies, or pending execution thereof final drafts, of the Margin Loan Provider Substitution Deed Poll and any other Programme Party will execute such other deeds, relevant documents and instruments of the legal opinions are available for inspection by Noteholders and Couponholders at the specified offices of the Paying Agents during normal business hours. The originals of the Substitution Deed Poll and other documents will be delivered to the Fiscal Agent to hold until there are no claims outstanding in respect of the Notes or the Coupons. Upon the substitution becoming effective (x) references (if any) as in these Conditions to the Trustee may require in order that such substitution British Virgin Islands shall be replaced by references to the country of incorporation and, if different, the country of tax residence of the New Company and (y) if the New Company is fully effective and comply with such other requirements not the Guarantor, all references in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial Conditions to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory Guarantor shall apply to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee Guarantor in its capacity as such pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute16(ii) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionabove.
Appears in 2 contracts
Sources: Supplemental Agency Agreement (PCCW LTD), Agency Agreement (PCCW LTD)
Substitution. (a) The Trustee may, without the consent of the ETP SecurityholdersNoteholders or Couponholders, (including, but subject to the prior consent of each Authorised Participant and the Margin Loan Providernot limited to, in circumstances which would constitute a Permitted Reorganisation) agree to the substitutionsubstitution of the Issuer’s successor in business, transferee or assignee or any subsidiary of the Issuer or its successor in business, transferee or assignee or of the Guarantor or its successor in business, transferee or assignee or any subsidiary of the Guarantor or its successor in business, transferee or assignee (the “Substituted Obligor”) in place of the Issuer or Guarantor (or of any previous substitutesubstitute under this sub clause) as the principal debtor or guarantor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Notes, the Receipts, the Coupons and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Talons provided that:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by this Trust Deed, the Security Documents Notes, the Receipts, the Coupons and the ETP Securities of each Series Talons (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Notes, the Certificates, the Receipts, the Coupons and the ETP Securities Talons as the principal debtor in place of the Issuer;
(Bii) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant “Substituted Territory”) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the Issuer is subject generally (the “Issuer’s Territory”), the Substituted Obligor shall (unless the Trustee may require so that otherwise agrees) give to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 88 with the Issuer substitution for the obligations references in that Condition to the Issuer’s Territory of references to the Substituted ObligorTerritory whereupon the Trust Deed, the Notes, the Certificates, the Receipts, the Coupons and the Talons shall be read accordingly;
(Ciii) if any director 2 directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the IssuerIssuer or the Guarantor;
(Div) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer Guarantor and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; andNoteholders;
(Hv) a legal opinion (unless the Issuer’s successor in business, transferee or assignee or where relevant, the Guarantor or its successor in business, transferee or assignee is the Substituted Obligor) the obligations of the Substituted Obligor under this Trust Deed, the Notes, the Receipts, and the Coupons are guaranteed by the Guarantor in the same terms (with consequential amendments as necessary) as the Guarantee to the Trustee’s satisfaction;
(vi) (unless all or substantially all of the assets of the Issuer or any previous Substituted Obligor are transferred to the Substituted Obligor) an unconditional and irrevocable guarantee in form and substance satisfactory to the Trustee is provided concerning any proposed substitution. An agreement given by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a any previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice (as applicable) of the substitution to the ETP Securityholders within 14 calendar days obligations of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor under this Trust Deed shall be deemed to be named have been given;
(vii) the Trustee is satisfied that (i) the Substituted Obligor has obtained all governmental and regulatory approvals and consents necessary for its assumption of liability as principal debtor under these presents and in these Conditionsrespect of the Notes, the Security Documents, the other Programme Documents Receipts and the ETP Securities as the principal debtor Coupons in place of the Issuer (or of any previous substituteSubstituted Obligor (as applicable) and these Conditions, (ii) such approvals and consents are at the Security Documents, the other Programme Documents time of substitution in full force and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.effect; and
Appears in 2 contracts
Sources: Trust Deed, Trust Deed
Substitution. The Trustee may, without If Borrower exercises its right to substitute a Substitute Premises for a Mortgaged Premises pursuant to the consent terms of the ETP Securityholders, but subject to the prior consent of each Authorised Participant Loan Agreement and the Margin Equipment Loan Provideris still outstanding, agree Borrower shall substitute Substitute Equipment located at such Substitute Premises for the Equipment located at such Mortgaged Premises, such substitution to occur simultaneously with the substitution, in place closing of the Issuer (or substitution of any previous substitute) as such Substitute Premises and be otherwise on the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thatfollowing conditions:
(A1) The proposed Substitute Equipment must:
(a) be suitable for use in a deed is executed or undertaking given by the Substituted Obligor to the TrusteePermitted Concept and in good condition and repair, in form ordinary wear and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuertear excepted;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals be owned by and consents are at the time vested in Borrower, free and clear of substitution in full force all liens and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholdersencumbrances; and
(Hc) have a legal opinion satisfactory fair market value no less than the greater of the then fair market value of the Equipment to be replaced or the Trustee is provided concerning any proposed substitutionfair market value of such Equipment as of the Closing, all as reasonably determined by Lender's in-house inspectors and underwriters.
(2) Lender shall have inspected and approved the Substitute Equipment utilizing Lender's customary equipment inspection and underwriting approval criteria. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or Borrower shall have reimbursed Lender for all of its obligations costs and expenses incurred with respect to such proposed substitution, including, without limitation, Lender's inspectors' costs and expenses with respect to the proposed Substitute Equipment. Borrower shall be solely responsible for the payment of all costs and expenses resulting from such proposed substitution, including, without limitation, UCC search and litigation search charges, attorneys' fees of Borrower and reasonable attorneys' fees and expenses of Lender, stamp taxes, mortgage taxes, transfer fees, and escrow, filing and recording fees (including preparation, filing and recording fees for UCC continuation statements);
(3) Lender shall have received UCC search results indicating that the Substitute Equipment is free and clear of all liens, security interests and encumbrances;
(4) Borrower shall deliver, or cause to be delivered, such legal opinions as Lender may reasonably require with respect to the proposed substitution, all in a form and substance which would be satisfactory to a prudent institutional mortgage loan lender and its counsel. If the Equipment Loan is part of a Securitization, such opinions shall include, without limitation, an opinion of counsel to the rating agencies which have issued ratings in connection with such Securitization that the substitution does not constitute a "significant modification" of such Equipment Loan under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice Section 1001 of the substitution Internal Revenue Code or otherwise cause a tax to the ETP Securityholders within 14 calendar days be imposed on a "prohibited transaction" by any REMIC Trust;
(5) no Event of Default shall have occurred and be continuing under any of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Loan Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.;
Appears in 2 contracts
Sources: Equipment Loan and Security Agreement (Tumbleweed Inc), Equipment Loan and Security Agreement (Tumbleweed Inc)
Substitution. The Trustee Issuer (the “Retiring Issuer” and the expressions “Issuer” and “Retiring Issuer” include any previous relevant Substitute Issuer (as defined below) under this Condition 14) may, without the consent of the ETP Securityholdersrelevant Noteholders or Couponholders, but subject to substitute the prior consent Parent or any subsidiary of each Authorised Participant and the Margin Loan Provider, agree to the substitution, Parent (including TFS) in place of the Issuer (or of any previous substitute) as the principal debtor under the Security DocumentsNotes, the other Programme Documents to which it is a party relative Receipts and Coupons and the ETP Securities of each Series, of any other company Agency Agreement (incorporated in any jurisdictionthe “Substitute Issuer”) (any such substitute company being the "Substituted Obligor"), provided that:
(Aa) in the case of the substitution of a subsidiary of the Parent (other than TFS or any other Issuer) in place of the Retiring Issuer, a Credit Support Agreement, in the case of a subsidiary of TFS, between such subsidiary and TFS being entered into, and the Basic Agreement applying, mutatis mutandis on the terms of the relevant Credit Support Agreement and the Basic Agreement, respectively and, in the case of a subsidiary of the Parent (and not being also a subsidiary of TFS) a Credit Support Agreement between such subsidiary and the Parent being entered into mutatis mutandis on the terms of the Basic Agreement;
(b) a deed is poll substantially in the form set out in Appendix G to the Agency Agreement (and such other documents (if any)) shall be executed or undertaking given by the Substituted Obligor Substitute Issuer and the Retiring Issuer as may be necessary to give full effect to the Trusteesubstitution (the “Substitution Documents”) and, (without limiting the generality of the foregoing) under which (i) the Substitute Issuer shall undertake in form favour of the relevant Noteholders and manner satisfactory to the Trustee, agreeing Couponholders to be bound by the Security Documents terms and conditions of the relevant Notes, Receipts and Coupons and the ETP Securities provisions of each Series (with such consequential amendments the Agency Agreement as the Trustee may deem appropriate) fully as if the Substituted Obligor Substitute Issuer had been named in the Security Documents relevant Notes, Receipts and Coupons and the ETP Securities Agency Agreement as the principal debtor in respect of the relevant Notes, Receipts and Coupons and the Agency Agreement in place of the Retiring Issuer; and (ii) the Retiring Issuer shall be released from its obligations as principal debtor in respect of the relevant Notes, Receipts and Coupons and the Agency Agreement;
(Bc) the Substituted Obligor assumes all rights, obligations and liabilities in relation without prejudice to the Secured Propertygenerality of paragraph (b) above, acknowledges where the Security created Substitute Issuer is subject generally to a taxing jurisdiction differing from or in respect thereof pursuant addition to the Security taxing jurisdiction to which the Retiring Issuer for which it shall have been substituted under this Condition 14 was subject, the Substitute Issuer shall undertake or covenant in the Substitution Documents and takes all such action in terms corresponding to the provisions of Condition 7 with the substitution for or addition to the references to the taxing jurisdiction to which the Retiring Issuer, as the Trustee case may require so that be, was subject of references to the Security constitutes a valid chargetaxing jurisdiction or additional taxing jurisdiction to which such Substitute Issuer, pledge or other security interest over as the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligorcase may be, is subject and in such case, Condition 7 shall be deemed to be modified accordingly when such substitution takes effect;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(Dd) the Trustee will be satisfied Substitution Documents shall contain a warranty and representation (if it requires, by reference to legal opinionsi) that (a) the Substitute Issuer and the Retiring Issuer have obtained all necessary governmental and regulatory approvals and consents for the substitution and that the Substitute Issuer has obtained all necessary governmental and regulatory approvals and consents for the performance by the Substitute Issuer of its obligations under the Substitution Documents and that all such approvals and consents are in full force and effect, (ii) that the obligations assumed by the Substitute Issuer in respect of the relevant Notes, Receipts and Coupons and the Agency Agreement are, in each case, valid and binding in accordance with their respective terms and enforceable by each relevant Noteholder, and (iii) the Substitute Issuer is solvent;
(e) any credit rating obtained by the Retiring Issuer from a nationally recognised statistical rating organisation which applies to the relevant Notes will not be downgraded as a result of the substitution;
(f) each stock exchange on which the relevant Notes are admitted to trading shall have confirmed that, following the proposed substitution of the Substitute Issuer, such Notes will continue to be admitted to trading on such stock exchange;
(g) where the Substitute Issuer is not a company incorporated in the United Kingdom, the Substitute Issuer shall have appointed a process agent as its agent in England to receive service of process on its behalf in relation to any legal action or proceedings arising out of or in connection with the assumption by relevant Notes, Receipts and Coupons and the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effectAgency Agreement;
(Eh) in the case of substitution of TCCI or a Canadian subsidiary of the Parent in place of the Retiring Issuer, no withholding or other taxes will be payable by any such Substitute Issuer;
(i) legal opinions shall have been delivered to the Agent (from whom copies will be available) (in each case dated not more than three days prior to the intended date of substitution) from legal advisers of good standing selected by the Substitute Issuer (i) in each jurisdiction in which the Substitute Issuer and the Substituted Obligor will execute Retiring Issuer are incorporated and in England confirming, as appropriate, that upon the substitution taking place, the Substitution Documents constitute legal, valid and binding obligations of the Substitute Issuer and the relevant Notes, Receipts and Coupons and the Agency Agreement are legal, valid and binding obligations of the Substitute Issuer shall procure enforceable in accordance with their terms and (ii) in Japan and in the jurisdiction in which the Substitute Issuer is incorporated, in the event any Credit Support Agreements are entered into under paragraph (a) above, confirming that any such Credit Support Agreements constitute legal, valid and binding obligations of the Margin Loan Provider Parent, TFS and any other Programme Party will execute such other deedsthe Substitute Issuer, documents and instruments (if any) as the Trustee case may require be, enforceable in order that such substitution is fully effective and comply accordance with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;its terms; and
(Fj) in connection with any proposed such substitution, the Substitute Issuer and the Retiring Issuer shall not have regard to the consequences of such substitution of for individual Noteholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory and no person shall be entitled to claim whether from the Substitute Issuer, the Trustee mayRetiring Issuer, without the consent Agent, or any other person, any indemnification or payment in respect of any tax consequence of any such substitution upon any person except to the extent already provided in Condition 7 and/or any undertaking given in addition thereto or in substitution therefor in the Substitution Documents in accordance with paragraph (c) above. Upon execution of the holders of Substitution Documents as referred to in paragraph (b) above, (i) the ETP Securities, agree to a change of Substitute Issuer shall be the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, relevant Issuer named in the opinion of relevant Notes, the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer Receipts and Coupons and the Substituted Obligor comply with such other requirements Agency Agreement as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Retiring Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities relevant Notes, Receipts and Coupons and the Agency Agreement shall thereby be deemed to be amended as necessary to give effect to the substitutionsubstitution of the Substitute Issuer as principal debtor and (ii) the Retiring Issuer shall be released as aforesaid from all of its obligations as principal debtor in respect of the relevant Notes, Receipts and Coupons and the Agency Agreement. With effect on and from the time of the substitution of the Substitute Issuer in place of the Retiring Issuer:
(A) the Retiring Issuer has no further obligations to any Noteholder or Couponholder in relation to the relevant Notes, Receipts and Coupons;
(B) the Substitute Issuer has rights which the Retiring Issuer had in respect of the relevant Notes, Receipts and Coupons (in each case subject to paragraph (c) above); and
(C) the Substitute Issuer has assumed the obligations towards the Noteholders and Couponholders which the Retiring Issuer had in respect of the relevant Notes, Receipts and Coupons. The Substitution Documents shall be deposited with and held by the Agent and (in the case of Registered Notes) copied to the Registrar for so long as any of the relevant Notes remain outstanding and for so long as any claim made against the Substitute Issuer or the Retiring Issuer by any Noteholder or Couponholder in relation to the relevant Notes, Receipts, Coupons, the Agency Agreement or (in the case of Registered Notes) the Note Agency Agreement or the Substitution Documents shall not have been finally adjudicated, settled or discharged. The Substitute Issuer and the Retiring Issuer shall acknowledge in the Substitution Documents the right of every Noteholder to the production of the Substitution Documents for the enforcement of any of the relevant Notes, Receipts, Coupons, the Agency Agreement or (in the case of Registered Notes) the Note Agency Agreement or the Substitution Documents. Within 14 days of a substitution taking effect under this Condition 14, the Retiring Issuer shall give notice of such substitution to the relevant Noteholders in accordance with Condition 16.
Appears in 2 contracts
Sources: Agency Agreement (Toyota Motor Credit Corp), Agency Agreement (Toyota Motor Credit Corp)
Substitution. (a) The Trustee may, without the consent of the ETP SecurityholdersNoteholders or Couponholders, (including, but subject to the prior consent of each Authorised Participant and the Margin Loan Providernot limited to, in circumstances which would constitute a Permitted Reorganisation) agree to the substitutionsubstitution of the Issuer’s successor in business, transferee or assignee or any subsidiary of the Issuer or its successor in business, transferee or assignee or of the Guarantor or its successor in business, transferee or assignee or any subsidiary of the Guarantor or its successor in business, transferee or assignee (the “Substituted Obligor”) in place of the Issuer or Guarantor (or of any previous substitutesubstitute under this Clause) as the principal debtor or guarantor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Notes, the Receipts, the Coupons and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Talons provided that:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by this Trust Deed, the Security Documents Notes, the Receipts, the Coupons and the ETP Securities of each Series Talons (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Notes, the Certificates, the Receipts, the Coupons and the ETP Securities Talons as the principal debtor in place of the IssuerIssuer or as the guarantor in place of the Guarantor (or of any previous substitute under this Clause);
(Bii) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant “Substituted Territory”) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the Issuer is subject generally (the “Issuer’s Territory”), the Substituted Obligor shall (unless the Trustee may require so that otherwise agrees) give to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 88 with the Issuer substitution for the obligations references in that Condition to the Issuer’s Territory of references to the Substituted ObligorTerritory whereupon the Trust Deed, the Notes, the Certificates, the Receipts, the Coupons and the Talons shall be read accordingly;
(Ciii) if any director two directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the IssuerIssuer or the Guarantor;
(Div) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer Guarantor and the Substituted Obligor comply with such other requirements requirements, if any, as the Trustee may direct in the interests of the ETP Securityholders; andNoteholders as a class;
(Hv) a legal opinion (unless the Issuer’s successor in business, transferee or assignee or where relevant, the Guarantor or its successor in business, transferee or assignee is the Substituted Obligor) the obligations of the Substituted Obligor under this Trust Deed, the Notes, the Receipts, and the Coupons are guaranteed by the Guarantor in the same terms (with consequential amendments as necessary) as the Guarantee to the Trustee’s satisfaction;
(vi) (unless all or substantially all of the assets of the Issuer or any previous Substituted Obligor are transferred to the Substituted Obligor) an unconditional and irrevocable guarantee in form and substance satisfactory to the Trustee is provided concerning any proposed substitution. An agreement given by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a any previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice (as applicable) of the substitution to the ETP Securityholders within 14 calendar days obligations of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor under this Trust Deed shall be deemed to be named have been given;
(vii) the Trustee is satisfied that (i) the Substituted Obligor has obtained all governmental and regulatory approvals and consents necessary for its assumption of liability as principal debtor or guarantor under these presents and in these Conditionsrespect of the Notes, the Security Documents, the other Programme Documents Receipts and the ETP Securities as the principal debtor Coupons in place of the Issuer (or of Guarantor or any previous substituteSubstituted Obligor (as applicable) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.and
Appears in 2 contracts
Sources: Trust Deed, Trust Deed
Substitution. The Trustee may, without the consent of the ETP Securityholders, but Sponsor may at its option (subject to the prior consent conditions set forth below) substitute at any time, and from time to time, one or more issues (but not more than two issues with respect to each Released Asset (defined below)) of each Authorised Participant multifamily housing revenue bonds or senior custodial receipts evidencing such bonds (each, a “Substitute Asset”) for (a) (i) an Enhanced Custodial Receipt if there exists with respect to the underlying Custodian-Held Bonds a Bond Event of Default (provided that in the event the Bond Event of Default arises from a payment default on the underlying Custodian-Held Bond the Sponsor may only request release of such Enhanced Custodial Receipt and provide a Substitute Asset pursuant to this Section 3.19 if such payment default causes the Enhanced Custodial Receipts to not receive full and current payment) or (ii) for an issue of Enhanced Bonds with respect to which a Bond Event of Default exists, or (b) a Pre-Selected Deposited Asset, solely if the Sponsor has elected to effect a substitution of such Pre-Selected Deposited Asset in connection with the sale of the related Pre-Selected Mortgaged Property pursuant to Section 3.20 hereof. The Enhanced Custodial Receipts or Enhanced Bonds available to be substituted for in accordance with the foregoing sentence (each, a “Released Asset”) shall be released from the Series Certificate Agreement in accordance with the terms thereof, and the Margin Loan Provider, agree Substitute Asset(s) shall be deposited with the Administrator pursuant to the substitution, in place terms of the Issuer (or Series Certificate Agreement in accordance with the terms thereof, if each of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it following conditions is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thatmet:
(Aa) The Substitute Property meets all of F▇▇▇▇▇▇ Mac’s then applicable underwriting criteria, program, policy and documentation requirements unless waived in writing by F▇▇▇▇▇▇ Mac. In furtherance and not in limitation of the foregoing, F▇▇▇▇▇▇ Mac in considering the eligibility of the Substitute Property under such criteria and requirements may take into account a deed variety of factors, including, but not limited to, local market conditions, portfolio concentration in the market where the Substitute Property is executed or undertaking given by located, the Substituted Obligor to condition and quality of the Trustee, in form Substitute Property (which condition and manner satisfactory to quality shall not be less than the Trustee, agreeing Mortgaged Property to be bound by released (the Security Documents and “Released Project”)), the ETP Securities type of each Series Substitute Property (with such consequential amendments which shall be of the same type as the Trustee may deem appropriateReleased Project), the internal risk rating for such Substitute Property as determined by F▇▇▇▇▇▇ Mac (which risk rating as so determined shall be equal to or better than the risk rating (as determined by F▇▇▇▇▇▇ Mac) as if for the Substituted Obligor had been named Released Project) and pool diversification (the determination of any proposed Substitute Property’s eligibility under such criteria and requirement to be in the Security Documents F▇▇▇▇▇▇ Mac’s sole and the ETP Securities as the principal debtor in place of the Issuerabsolute discretion);
(Bb) F▇▇▇▇▇▇ Mac shall have been provided by the Substituted Obligor assumes Servicer (or otherwise) all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof applicable third party reports required pursuant to the Security Documents Guide or otherwise required by F▇▇▇▇▇▇ Mac, in its sole and takes absolute discretion, to evaluate the proposed Substitute Property including but not limited to:
(i) An environmental report on the proposed Substitute Property in all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligorrespects reasonably satisfactory to F▇▇▇▇▇▇ Mac;
(Cii) if any director An engineering report on the proposed Substitute Property in all respects reasonably satisfactory to F▇▇▇▇▇▇ Mac;
(iii) A survey of the Substituted Obligor certifies that it will Substitute Property, in all respects reasonably satisfactory to F▇▇▇▇▇▇ Mac; and
(iv) An appraisal on the Substitute Property in all respects reasonably satisfactory to F▇▇▇▇▇▇ Mac;
(c) Sponsor shall pay all out of pocket fees and expenses of F▇▇▇▇▇▇ Mac, including the reasonable costs and expenses of outside counsel in connection with such substitution;
(d) The Substitute Property shall be solvent immediately after subject to satisfactory inspection by F▇▇▇▇▇▇ Mac;
(e) The underlying bond documents related to the Substitute Property meet F▇▇▇▇▇▇ Mac’s then-applicable program requirements in all material respects or are otherwise waived by F▇▇▇▇▇▇ Mac;
(f) Unless waived by F▇▇▇▇▇▇ Mac, the terms of the Substitute Asset, including tax status, maturity, interest rate and interest mode, are substantially consistent with the terms of the Released Asset;
(g) After giving effect to such substitution, the Trustee need geographic concentration of the Mortgaged Properties is not have regard greater than that prior to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuersubstitution;
(Dh) The ratio of the unpaid principal balance of the Substitute Asset to the value of the Substitute Property (the “Loan to Value Ratio” or “LTV”) at the time of the proposed substitution, as determined by F▇▇▇▇▇▇ Mac in accordance with its then current underwriting methodology, is less than or equal to the lesser of (i) the Trustee will be satisfied loan to value ratio of the Released Project as of the Closing Date or (if it requiresii) the loan to value ratio of the Released Project as of the date of the proposed release of the Released Project as determined by F▇▇▇▇▇▇ Mac in accordance with its then existing underwriting methodology and in all events the Loan to Value Ratio does not exceed 85%;
(i) The ratio of the net operating income and the annual debt service (the “Debt Service Coverage” or “DCR”) for the Substitute Property for the last twelve (12) calendar months preceding the proposed substitution, calculated in accordance with F▇▇▇▇▇▇ Mac’s then-existing underwriting methodology, is greater than or equal to the greater of (i) the Debt Service Coverage for the Released Project as of the Closing Date for the Released Project or (ii) the current Debt Service Coverage for the Released Project for the prior twelve (12) calendar months, calculated in accordance with F▇▇▇▇▇▇ Mac’s underwriting methodology employed by reference F▇▇▇▇▇▇ Mac in determining the Debt Service Coverage for the Substitute Property and in all events the Debt Service Coverage is not less than 1.15%;
(j) If the proposed Substitute Asset is a custodial receipt relating to legal opinionsa series bonds and/or a mortgaged project that would not otherwise meet F▇▇▇▇▇▇ Mac’s underwriting criteria and requirements but for the delivery of the bonds into a custodial receipt arrangement, the DCR/LTV of such bonds and mortgaged project prior to such delivery must equal at least a DCR/LTV of 1.05x/95%, as determined by F▇▇▇▇▇▇ Mac, in addition to the Substitute Asset meeting all other substitution requirements;
(k) that No Event of Default shall exist and there shall have been no related Bond Event of Default with respect to such Substitute Asset during the immediately preceding twelve (a12) month period;
(l) Contemporaneously with the request for a substitution, Sponsor shall pay to F▇▇▇▇▇▇ Mac a deposit to cover third party costs and fees and a mortgage review fee of the greater of $5,000 per substituted property or .10% of the unpaid principal balance of the Substitute Asset. On or prior to the closing date for the substitution, the Sponsor shall pay F▇▇▇▇▇▇ Mac a substitution fee (i) equal to the greater of $5,000 or 0.25% of the unpaid principal balance of the Substitute Asset(s) (with a credit for the mortgage review fee previously paid) for a substitution relating to a Bond Event of Default or (ii) equal to the greater of $50,000 or 0.50% of the unpaid principal balance of the Substitute Asset(s) (with a credit for the mortgage review fee previously paid) for a substitution relating to a substitution of a Pre-Selected Deposited Asset pursuant to Section 3.20. In addition, the Sponsor shall pay the reasonable fees and out-of-pocket expenses of outside counsel, appraisers, environmental professionals and engineers, plus all necessary governmental reasonable out-of-pocket costs and regulatory approvals and consents necessary for or expenses incurred by F▇▇▇▇▇▇ Mac in connection with the assumption by foregoing. Such amounts shall be paid on or prior to the Substituted Obligor closing date of liability as principal debtor in respect such substitution. If such substitution fails to close, Sponsor shall pay F▇▇▇▇▇▇ Mac such reasonable fees and out-of, and -pocket expenses within (30) days of its obligations under, the ETP Securities Sponsor’s receipt of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effectinvoices therefor;
(Em) If the unpaid principal balance of the Substitute Asset is less than the unpaid principal balance of the Released Asset (a “Contraction”) the Issuer and Sponsor shall pay any applicable Total Release Price with respect to the Substituted Obligor will execute and principal portion of the Issuer shall procure Released Asset that is in excess of the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if anyprincipal amount of the Substitute Asset(s) as and when required by the Trustee may require Series Certificate Agreement, and if the Contraction is greater than 5%, then, in order that such substitution is fully effective and comply with such other requirements in addition to the interests fees required under Section 3.19(i) above, Sponsor shall pay or cause to be paid a Prepayment/Substitution Premium to F▇▇▇▇▇▇ Mac on the amount by which the unpaid principal balance of the ETP Securityholders as Released Asset exceeds the Trustee may directunpaid principal balance of the Substitute Asset(s) on the date of substitution;
(n) The Sponsor and F) in connection with ▇▇▇▇▇▇ Mac shall have executed an addendum to this Agreement and any proposed related agreements to reflect the substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholderscontemplated hereby; and
(Ho) F▇▇▇▇▇▇ Mac shall have received an opinion of Bond Counsel acceptable to F▇▇▇▇▇▇ Mac to the effect that such substitution does not adversely affect the exclusion of interest accrued on the related Certificates from gross income of the holders thereof for federal income tax purposes.
(p) If requested by F▇▇▇▇▇▇ Mac, F▇▇▇▇▇▇ Mac shall have received a legal opinion 704(b) analysis with respect to the ownership of the Substitute Property which is satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of F▇▇▇▇▇▇ Mac in its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionsole discretion.
Appears in 2 contracts
Sources: Bond Exchange, Reimbursement, Pledge and Security Agreement (America First Multifamily Investors, L.P.), Bond Exchange, Reimbursement, Pledge and Security Agreement (America First Tax Exempt Investors Lp)
Substitution. The Trustee maySubject to the terms and conditions set forth in this Section 6.6, without the consent Borrower may obtain a release of the ETP Securityholders, but subject to Lien of the prior consent of each Authorised Participant Security Instrument (and the Margin related Loan ProviderDocuments) on any Individual Property (the “Substituted Property”), agree by substituting therefor another commercial property acceptable to Lender with a property of kind, quality (including location attributes of submarket strength, population and access) and use equal to or better than the substitution, in place of Substituted Property to be acquired by Borrower or an Affiliate thereof (the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"“Substitute Property”), provided thatthat any such substitution (a “Substitution”) shall be subject, in each case, to the following conditions precedent are satisfied:
(a) The aggregate Loan-To-Value Ratio for all of the Individual Properties (including the Substitute Property, but excluding the Substituted Property) immediately following the Substitution shall not exceed the aggregate Loan-To-Value Ratio for all of the Individual Properties (including the Substituted Property, but excluding the Substitute Property) immediately prior to the Substitution.
(b) No Substitution shall occur during the twelve (12) month period preceding the Maturity Date.
(c) Lender shall have received at least sixty (60) days prior written notice requesting the Substitution and identifying the Substitute Property.
(d) Lender shall have received a fee equal to $15,000, for each Substitution.
(e) Lender shall have received an appraisal of the Substitute Property, dated no more than sixty (60) days prior to the Substitution date, by an appraiser reasonably acceptable to the Rating Agencies (if the Loan has been Securitized) and Lender.
(f) The fair market value of the Substitute Property shall not be less than one hundred five percent (105%) of the fair market value of the Substituted Property as of the Closing Date, which determination shall be made by Lender based on the appraisals delivered pursuant to clause (e) above.
(g) SPE Component Entity shall transfer its indirect interest in the Substituted Property to a third party and shall assume the interest of the Substitute Property. In the event the applicable Borrower relating to the Substituted Property is Golden Arrow Clermont FL LLC, the Deposit Account and the Cash Management Account shall be transferred to another Borrower.
(h) The weighted average credit rating of the Tenants of the Property (including the Substitute Property, but excluding the Substituted Property) must not be less than the weighted average credit rating of the Tenants of the Property (including the Substituted Property, but excluding the Substitute Property), prior to the Substitution. The weighted average remaining lease term of the Leases of the Property (including the Substitute Property, but excluding the Substituted Property) must not be less than the weighted average remaining lease term of the Leases of the Property (including the Substituted Property, but excluding the Substitute Property), prior to the Substitution.
(i) The Substitute Property shall be leased (A) for a deed is executed fixed rent equal to or undertaking given by better than the rent of the Substituted Obligor to the TrusteeProperty, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) for a lease term (excluding any option to extend, renew or terminate the lease) of no less than the remaining lease term of the Tenant for the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director on terms and conditions no less favorable than the Lease to the Tenant of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
Substitute Property and (D) the Trustee will credit rating of the Tenant at the Substitute Property shall be satisfied equal to or great than the Tenant’s at the Substituted Property’s credit rating as of the Substitution.
(if it requiresj) If the Loan is part of a Securitization, Lender shall have received a Rating Agency Confirmation. If the Loan is not part of a Securitization, Lender shall have consented in writing to such Substitution, which consent shall not be unreasonably withheld.
(k) No Event of Default shall have occurred and be continuing (unless such Substitution would cure such Event of Default, Lender consents to the Substitution and Borrower pays any and all fees and expenses related to the Event of Default and payable by reference Borrower pursuant to legal opinionsthe terms of this Agreement). Lender shall have received a certificate from Borrower confirming the foregoing, stating that the representations and warranties of Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date of the Substitution with respect to Borrower, the Properties and the Substitute Property and containing any other representations and warranties with respect to Borrower, the Properties, the Substitute Property or the Loan as Lender and the Rating Agencies may reasonably require, unless such certificate would be inaccurate, such certificate to be in form and substance reasonably satisfactory to Lender and the Rating Agencies.
(l) Borrower shall (A) have executed, acknowledged and delivered to Lender (I) such security instruments and UCC-1 financing statements with respect to the Substitute Property as Lender may reasonably require, together with a letter from Borrower countersigned by a title insurance company acknowledging receipt of such security instruments and financing statements and agreeing to record or file, as applicable, such security instruments and financing statements in the appropriate recording or filing offices so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents and (II) an amendment to the Environmental Indemnity Agreement with respect to the Substitute Property and (B) have caused the Guarantor to acknowledge and confirm their respective obligations under the Loan Documents. The required security documents, financing statements and other documents shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Substituted Property subject to modifications reflecting only the Substitute Property as the property that is the subject of such documents and such modifications reflecting the laws of the state in which the Substitute Property is located as are customarily delivered in similar transactions in such state and delivering the opinion as to the enforceability of such documents required pursuant to clause (ar) below. The security instrument encumbering the Substitute Property shall secure all necessary governmental amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and regulatory approvals does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such security instrument shall be equal to one hundred twenty-five percent (125%) of the Allocated Loan Amount of the Substitute Property.
(m) Lender shall have received (A) to the extent available any “tie-in” or similar endorsement to each title insurance policy insuring the Lien of an existing Security Instrument as of the date of the Substitution with respect to the title insurance policy insuring the Lien of the Security Instrument with respect to the Substitute Property and consents necessary for (B) a title insurance policy (or a marked, signed and redated commitment to issue such title insurance policy) insuring the Lien of the Security Instrument encumbering the Substitute Property, issued by the title company that issued the title insurance policies insuring the Lien of the existing Security Instruments (or any other reputable national title insurance company approved by Lender) and dated as of the date of the Substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the assumption title insurance policy insuring the Lien of the Security Instrument encumbering the Substituted Property. The title insurance policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Allocated Loan Amount if the “tie-in” or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Allocated Loan Amount, (2) insure Lender that the relevant Security Instrument creates a valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the Substituted Obligor terms of liability any endorsements) as principal debtor reasonably approved by Lender, (3) contain such endorsements and affirmative coverages as are then available and are contained in the title insurance policies insuring the Liens of the existing Security Instruments, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts or other evidence showing that all premiums in respect ofof such endorsements and title insurance policies have been paid.
(n) Lender shall have received a current survey for the Substitute Property, certified to the title company and Lender and their successors and assigns, in the same form and having the same content as the certification of the survey of the Substituted Property prepared by a professional land surveyor licensed in the state in which the Substitute Property is located and acceptable to Lender and the Rating Agencies. Such survey shall reflect the same legal description contained in the title insurance policy relating to such Substitute Property and shall include, among other things, a metes and bounds description of the real property comprising part of such Substitute Property (unless such real property has been satisfactorily designated by lot number on a recorded plat). The surveyor’s seal shall be affixed to each survey and each survey shall certify that the surveyed property is not located in a “one-hundred-year flood hazard area.”
(o) Lender shall have received valid certificates of insurance indicating that the requirements for the policies of insurance required for an Individual Property hereunder have been satisfied with respect to the Substitute Property and evidence of the payment of all premiums payable for the existing policy period.
(p) Lender shall have received a Phase I environmental report from an environmental consultant reasonably approved by Lender, and, if recommended under the Phase I environmental report, a Phase II environmental report, which conclude that the Substitute Property does not contain any Hazardous Substances in violation of any Environmental Laws and is not subject to any material risk of contamination from any off-site Hazardous Substances. If any such report discloses the presence of any Hazardous Substances in violation of any Environmental Laws or a material risk of contamination from any off-site Hazardous Substances, such report shall include an estimate of the cost of any related remediation and Borrower shall deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such report indicating that there are no longer Hazardous Substances on the Substitute Property in violation of any Environmental Laws or any material danger of contamination from any off-site Hazardous Substances that has not been fully remediated and (B) paid receipts indicating that the costs of all such remediation work have been paid.
(q) Borrower shall deliver or cause to be delivered to Lender (A) updates certified by Borrower of all organizational documentation related to the Borrower effecting the Substitution and/or the formation, structure, existence, good standing and/or qualification to do business delivered to Lender on the date hereof; (B) good standing certificates, certificates of qualification to do business in the jurisdiction in which the Substitute Property is located (if required in such jurisdiction); and (C) resolutions of Borrower authorizing the Substitution and any actions taken in connection with such Substitution.
(r) Lender shall have received the following opinions of Borrower’s counsel: (A) an opinion or opinions of counsel admitted to practice under the laws of the state in which the Substitute Property is located stating that the Loan Documents delivered with respect to the Substitute Property pursuant to clause (l) above are valid and enforceable in accordance with their terms, subject to the laws applicable to creditors’ rights and equitable principles, and that Borrower is qualified to do business and in good standing under the laws of the jurisdiction where the Substitute Property is located or that Borrower is not required by applicable law to qualify to do business in such jurisdiction; (B) an opinion of counsel acceptable to the Rating Agencies if the Loan is part of a Securitization, or the Lender if the Loan is not part of a Securitization, stating that the Loan Documents delivered with respect to the Substitute Property pursuant to clause (l) above were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Loan Documents and the performance by Borrower of its obligations thereunder will not cause a breach of, or a default under, any agreement, document or instrument to which Borrower is a party or to which it or its properties are bound; (C) an opinion of counsel acceptable to, the ETP Securities Rating Agencies if the Loan is part of each Series a Securitization, or the Lender if the Loan is not part of a Securitization, stating that subjecting the Substitute Property to the Lien of the related Security Instrument and any Programme Document have been obtained the execution and delivery of the related Loan Documents does not and will not impair the ability of Lender to enforce its remedies under all of the Loan Documents or to realize the benefits of the cross-collateralization provided for thereunder; (bD) such approvals and consents are at the time of substitution in full force and effect;
intentionally omitted; (E) intentionally omitted and (F) if the Issuer Loan is part of a Securitization, an opinion of counsel obtained by the applicable servicer at Borrower’s expense, acceptable to the Rating Agencies stating that any REMIC Trust that has acquired the loan secured hereby will not fail to maintain its status as a REMIC Trust solely as a result of such Substitution and that the Substitution and related transaction would not be a “Significant Modification” and would not cause the loan to fail to be a “Qualified Mortgage” under the REMIC Requirements. Notwithstanding the foregoing provisions of this Section 6.6 or anything herein to the contrary, this Section 6.6 is subject to the terms of Section 11.3 hereof, and to the extent Borrower is required to make any principal prepayment pursuant to Section 11.3 hereof, Borrower shall also pay to Lender the Yield Maintenance Premium in connection with such principal prepayment.
(s) Borrower shall have paid, or escrowed with Lender, all due and payable insurance premiums (unless the Property is covered by a blanket insurance policy or Tenant provides self-insurance that is satisfactory to Lender), taxes and other charges relating to each of the Individual Properties and the Substituted Obligor will execute Substitute Property, including without limitation, (i) accrued but unpaid insurance premiums relating to each of the Individual Properties and the Issuer shall procure that the Margin Loan Provider Substitute Property, and (ii) currently due and payable Taxes (including any other Programme Party will execute such other deeds, documents and instruments (if anyin arrears) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests relating to each of the ETP Securityholders as Individual Properties and the Trustee may direct;Substitute Property and (iii) currently due and payable maintenance charges and other impositions relating to each of the Properties and Substitute Property. Any Impounds or other amounts held by Lender with respect to the Substituted Property shall, at the Borrower’s election, be applied to (i) amounts payable by Borrower in connection with this clause (s), (ii) returned to Borrower, or (iii) or applied to other amounts due and payable by Borrower under this Agreement.
(Ft) Borrower shall have paid or reimbursed Lender for all reasonable third party costs and expenses incurred by Lender (including, without limitation, reasonable attorney’s fees and disbursements) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer Substitution and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Consolidated Tomoka Land Co)
Substitution. 10.1 The Trustee mayVendor shall apply to the Landlords for the Releases and the Vendor and Purchaser will take all steps and enter into all such documentation as is necessary to achieve the Substitutions and obtain the Releases in respect of the Guarantees.
10.2 Completion of the Substitutions is conditional upon the grant of the Releases required in respect of the Guarantees.
10.3 If, in relation to a Guarantee, the Vendor and Purchaser (after making and progressing a proper application to the respective Landlord for a Release) agree in writing (making express reference to this paragraph) that such Landlord will not grant a Release then, with effect from such date, the Vendor’s and Purchaser’s obligations under this paragraph 10 shall cease in relation to such Release.
10.4 Save for the Releases which the Vendor has applied for as at the Completion Date, the Vendor shall not later than five (5) Business Days after the Completion Date apply to the Landlords for the Releases and keep the Purchaser informed of the progress of each application.
10.5 The Vendor shall use its reasonable endeavours (including, without limitation, taking Court Proceedings at the consent cost and request of the ETP SecurityholdersPurchaser except where the Substitution is absolutely prohibited by the lease to which the Guarantee relates or the Landlord under that lease to which the Guarantee relates has an absolute right to refuse consent or either the Vendor or Purchaser is able to provide the opinion of a leading counsel specialising in landlord and tenant law that such Court Proceedings would be, but subject on balance, unsuccessful) and the Purchaser will assist the Vendor to obtain the Releases.
10.6 The Purchaser shall promptly and expeditiously satisfy the requirements of the Landlord and shall take all steps to assist the Vendor in obtaining the Releases (including, without limitation, assistance in connection with any Court Proceedings or appeal in respect of them) and without prejudice to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place generality of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thatforegoing shall:
(Aa) provide to the Vendor all information, references and documents as shall be requested by any Landlord to support any application for a deed is executed or undertaking given Release made by the Substituted Obligor to the Trustee, Vendor in form and manner satisfactory to the Trustee, agreeing to accordance with this Schedule or which may otherwise be bound agreed by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuerparties;
(Bb) in any necessary document, enter into direct covenants with the Substituted Obligor assumes all rightsrelevant Landlord to observe and perform the guarantor’s covenants and obligations contained in the leases to which the Guarantees relate throughout the residue of the term of the lease or, obligations in the case of a new lease under the Landlord and liabilities in relation to the Secured PropertyTenant (Covenants) ▇▇▇ ▇▇▇▇, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all until released; and
(c) if lawfully required, provide such action as the Trustee may require so that the Security constitutes a valid chargefurther guarantee, pledge surety or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted ObligorPurchaser (as Guarantor) under the lease as is acceptable to the relevant Landlord, to the intent that the Purchaser will take all steps and do all acts and make all payments which it is necessary to be done and which it is capable of doing or to be paid to meet the requirements of the Landlord as aforesaid so as to ensure that the Releases are obtained.
10.7 Any applications made by the Vendor to the Landlords or their solicitors or agents in relation to the obtaining of the Releases shall be in a form approved by the Purchaser, such approval not to be unreasonably withheld or delayed.
10.8 Subject to paragraph 12 below, the costs incurred by or awarded against the Vendor in obtaining the Releases and in pursuing Court Proceedings and any appeal in respect of them (whether by the Vendor or the Landlord) shall be allocated as follows:
(a) the Purchaser shall bear its own and the Vendor’s legal costs in applying for and obtaining the Releases;
(Cb) if any director of the Substituted Obligor certifies that it will Purchaser shall be solvent immediately after such substitution, responsible for the Trustee need not have regard legal and other costs payable to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of Landlords under the Issuer;
(D) leases to which the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersGuarantees relate; and
(Hc) a legal opinion satisfactory the cost of any Court Proceedings shall be paid by the Purchaser.
10.9 If the Release has not been obtained in respect of any Guarantee within twelve (12) months of the date of this Agreement then (provided that it has complied with its obligations contained in this Agreement so far as they relate to the Trustee is provided concerning Guarantee) either the Vendor or Purchaser shall be entitled by giving written notice to the other at any proposed substitution. An agreement by time thereafter (but only before the Trustee pursuant Release has been obtained) to elect to withdraw the relevant Guarantee from this Condition 14.3 Agreement and upon service of such notice the Security Documents will, if provisions of this Agreement so expressed, release far as they relate to the Issuer relevant Guarantee shall determine but without prejudice to:
(or a previous substitutea) from the liability of either party for any or all subsisting breach of its that party’s obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution this Agreement in relation to the ETP Securityholders within 14 calendar days of relevant Guarantee; and
(b) the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionparties’ obligations under paragraph 10.3.
Appears in 2 contracts
Sources: Transfer Agreement (Telewest Global Inc), Transfer Agreement (Telewest Global Inc)
Substitution. The Trustee mayEach Bank (an "EXISTING BANK") may transfer, without by way of novation (but not by way of assignment or otherwise), all or any part (being at least NLG 15,000,000 and an integral multiple of NLG 5,000,000) of its rights, benefits and/or obligations under this Agreement (including, for the consent avoidance of the ETP Securityholdersdoubt, but subject any outstanding Telekabel Notes) to a Qualifying Bank (a "SUBSTITUTE") with the prior consent in writing of each Authorised Participant the Parent, such consent not to be unreasonably withheld or delayed. Any such novation shall be effected upon not less than 5 Banking Days' prior notice by delivery to the Agent of a duly completed Substitution Certificate duly executed by the Existing Bank and the Margin Loan ProviderSubstitute. On the Effective Date (as specified and defined in a Substitution Certificate so executed and delivered), agree to the substitution, in place extent that the Commitment and Contribution of the Issuer Existing Bank are expressed in a Substitution Certificate to be the subject of the novation in favour of the Substitute effected pursuant to this clause 17.3, by virtue of the counter-signature of the Substitution Certificate by the Agent (or of any previous substitute) as the principal debtor under the Security Documents, for itself and the other Programme Documents parties to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:this Agreement):
(A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental the existing parties to this Agreement and regulatory approvals the Security Trust Deed and consents necessary for or in connection with the assumption by Existing Bank shall be released from their respective obligations towards one another under this Agreement and the Substituted Obligor of liability as principal debtor in respect of, Security Trust Deed ("DISCHARGED OBLIGATIONS") and of its obligations under, their respective rights against one another under this Agreement and the ETP Securities of each Series and any Programme Document have been obtained and Security Trust Deed ("DISCHARGED RIGHTS") shall be cancelled; (b) such approvals and consents are at the time of substitution in full force and effect;
(E) Substitute party to the Issuer relevant Substitution Certificate and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant existing parties to this Condition 14.3 Agreement and the Security Documents will, if so expressed, release Trust Deed (other than such Existing Bank) shall assume obligations towards each other which differ from the Issuer discharged obligations only insofar as they are owed to or assumed by such Substitute instead of to or by such Existing Bank; and (or a previous substitutec) from any or all of its obligations under the Security Documents, Substitute party to the ETP Securities relevant Substitution Certificate and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution existing parties to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 Agreement and the Security Documents, the Substituted Obligor Trust Deed (other than such Existing Bank) shall be deemed to be named in these Conditions, the Security Documents, the acquire rights against each other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.which
Appears in 2 contracts
Sources: Loan Agreement (United Pan Europe Communications Nv), Loan Agreement (United Pan Europe Communications Nv)
Substitution. The Trustee maySubject to Clause 16.5 below:
16.2.1 In the event of a Newco Scheme (as defined in Condition 3), without the consent Issuer shall take (or shall procure that there is taken) all necessary action to ensure that (to the satisfaction of the ETP SecurityholdersTrustee) immediately after completion of the Scheme of Arrangement (as defined in Condition 3):
(i) at the Issuer’s option, but subject to the prior consent of each Authorised Participant either (a) Newco (as defined in Condition 3) is substituted under this Trust Deed and the Margin Loan Provider, agree to the substitution, Notes as principal obligor in place of the Issuer (or with the Issuer providing an unconditional and irrevocable guarantee to the satisfaction of any previous substitute) as the principal debtor Trustee in respect of the obligation of Newco under the Security Documents, the other Programme Documents to which it is a party Notes and the ETP Securities of each Series, of any other company Trust Deed) subject to and as provided below or (incorporated in any jurisdictionb) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor Newco provides an unconditional and irrevocable guarantee to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities satisfaction of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for of the obligations of the Substituted Obligor;Issuer under this Trust Deed and the Notes; and
(Cii) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitutionamendments are made to this Trust Deed, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer Conditions and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) Notes as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of laware necessary, in the opinion of the Trustee, would to ensure that the Notes may be converted into or exchanged for cash and/or ordinary shares, or units or the equivalent, in Newco (or depositary or other receipts or certificates representing ordinary shares or units or the equivalent in Newco) mutatis mutandis in accordance with and subject to this Trust Deed, the Conditions and the Notes (and the Trustee shall (at the expense of the Issuer) be obliged to concur in effecting such substitution or grant of such guarantee and in either case making any such amendments, provided that the Trustee shall not be materially prejudicial obliged so to concur if, in the opinion of the Trustee, doing so would impose more onerous obligations, responsibilities or duties upon it or expose it to further liabilities or reduce its protections), and this Trust Deed and the Conditions provide at least the same powers, protections, rights and benefits to the interests Trustee and the Noteholders following the implementation of such ETP Securityholders;
(G) Scheme of Arrangement as they provided to the Issuer Trustee and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests Noteholders prior to implementation of the ETP SecurityholdersScheme of Arrangement mutatis mutandis; and
(Hiii) a legal opinion satisfactory the ordinary shares or units or equivalent of Newco (or depositary or other receipts or certificates representing ordinary shares or units or the equivalent in Newco) are (a) admitted to the Trustee is provided concerning NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market (or any proposed substitution. An agreement by of their respective successors) or (b) admitted to listing on another regulated, regularly operating, recognised stock exchange or securities market, and subject to the foregoing the Trustee shall, without the consent of the Noteholders, agree to such substitution of Newco.
16.2.2 Any substitution made pursuant to this Condition 14.3 Clause shall be binding on the Noteholders and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution must be notified promptly to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance Noteholders in accordance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution17.
Appears in 2 contracts
Substitution. The Trustee maySubject to the provisions of this Section 14.04, without Lessee shall have the consent right to substitute like-kind assets for the Properties; provided, however, that (x) Lessee shall not have any such substitution right if the substitution of any Property would cause Lessor to recognize income or gain from a “prohibited transaction” as defined under Section 857(b)(6) of the ETP SecurityholdersCode or such substituted like-kind asset is not “real property” under Section 856 of the Code; (y) not more than three (3) of the Properties over the Lease Term shall be substituted; and (z) Lessor has the right to approve or disapprove any proposed substitution; provided, but subject however, if Lessor disapproves any substitution proposed by Lessee that otherwise meets the criteria and conditions set forth in this Section 14.04, then, within thirty (30) days of receipt of Lessor’s disapproval of the proposed substitution, Lessee has the right, upon written notice to Lessor, to elect to terminate this Lease with respect to such Property, whereupon, (1) Lessee shall have no further obligations hereunder with respect to such Property, expressly excluding, however, Lessee’s obligations to the Indemnified Parties under any indemnification provisions of this Lease with respect to such Property and Lessee’s obligations to pay Rental and all other Monetary Obligations (whether payable to Lessor or a third party) accruing under this Lease with respect to such Property prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitutiondate of termination, in place which obligations shall survive termination; and (2) the Base Annual Rental shall be reduced by an amount equal to the Lease Rate multiplied by the lesser of (i) the appraised value of such Property as of the Issuer date of its acquisition by , or (ii) the appraised value of such Property performed in accordance with the appraisal requirements set forth in Section 14.04(a)(iii) below. If Lessee elects to conduct a substitution such that another unencumbered property location or of any previous substitutelocations (each, a “Substitute Property”) as is substituted for a Property being released (each, a “Replaced Property”):
(a) The substitution shall comply with the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thatfollowing:
(i) the Substitute Property (A) shall be a deed is executed Permitted Facility, in good condition and repair, ordinary wear and tear excepted; and (B) shall be made subject to this Lease with no decline in Base Annual Rental or undertaking given any other Rental due hereunder.
(ii) Lessor shall have received at least thirty-five (35) days’ prior written notice requesting the substitution and identifying the Substitute Property and Replaced Property.
(iii) Lessor shall have received a current appraisal performed by the Substituted Obligor to the Trustee, an MAI Appraiser (in form and manner substance satisfactory in all respects to Lessor) of the Substitute Property prepared within one hundred eighty (180) days prior to the Trustee, agreeing release and substitution date (the “Substitution Date”) showing an appraised value equal to be bound by or greater than the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place appraised value of the Issuer;Replaced Property.
(Biv) If any loan with a mortgagee of Lessor (“Mortgagee”) is part of a Securitization, Lessor shall have received confirmation in writing from the Substituted Obligor assumes all rights, obligations and liabilities in relation rating agencies to the Secured Propertyeffect that such release and substitution will not result in a withdrawal, acknowledges qualification or downgrade of the Security created respective ratings in respect thereof pursuant effect immediately prior to the Security Documents such release and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer substitution for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or securities issued in connection with the assumption Securitization that are then outstanding. Lessor shall use commercially reasonable efforts to obtain the confirmation required by this clause (iv).
(v) Lessor has received evidence that the Substituted Obligor store-level profitability as set-forth in the operating statements of liability the Substitute Property is, or is reasonably expected to be, equal to or greater than the store-level profitability of the Replaced Property as principal debtor set forth in the operating statements for the immediately preceding twelve (12) month period or, if applicable, the pro forma operating statement delivered pursuant to Section 14.04(a)(xi) below.
(vi) Except as described in Section 12.05, no Event of Default shall have occurred and be continuing and Lessee shall be in compliance in all material respects with all terms and conditions set forth in this Lease on Lessee’s part to be observed or performed. Lessor shall have received a certificate from Lessee confirming the foregoing, stating that the representations and warranties of Lessee contained in this Lease are true and correct in all material respects on and as of the Substitution Date (or if untrue, providing details regarding the same), with respect ofto Lessee, the Properties and the Substitute Property and containing any other representations and warranties with respect to Lessee, the Properties, the Substitute Property as Lessor, Mortgagee and the rating agencies (if a Securitization has occurred), may reasonably require, such certificate to be in form and substance reasonably satisfactory to Lessor, Mortgagee or the rating agencies, as applicable; provided, however, Lessor, Mortgagee or the rating agencies, as applicable, may object to any exceptions as to the representations and warranties set forth in Lessee’s certificate; and provided, further, that Lessor shall provide the necessary disclosures in order to enable Lessee to make the representation contained in Section 5.10.
(vii) Lessor and Mortgagee shall have received preliminary title reports and irrevocable commitments to insure title by means of an ALTA extended coverage owner’s policy and lender’s policy of title insurance, as applicable (or their equivalent in the event such forms are not issued in the jurisdiction where the Substitute Property is located) for the Substitute Property issued by a title company selected by Lessor and committing to insure Lessor’s good and marketable title in the Substitute Property and Mortgagee’s lien encumbering the Substitute Property, subject only to permitted exceptions reasonably acceptable to Lessor and Mortgagee and containing such coverage and endorsements as Lessor and Mortgagee may reasonably require.
(viii) Lessor shall have received a current ALTA survey of the Substitute Property, the form of which shall be reasonably acceptable to Lessor and Mortgagee, and their respective successors and assigns, and sufficient to cause the standard survey exceptions set forth in the title policies referenced above to be deleted.
(ix) Lessor shall have inspected and approved the Substitute Property utilizing Lessor’s site inspection and underwriting approval criteria, including without limitation, completion of such environmental due diligence of the Substitute Property as Lessor deems necessary or advisable in its obligations underreasonable discretion, including but not limited to, receiving such environmental reports and/or an environmental insurance policy with respect to the Substitute Property, which in form and substance are acceptable to Lessor in its reasonable discretion. In connection with the foregoing, Lessor, in its reasonable discretion, shall have approved the condition of the Substitute Property, including without limitation, the ETP Securities environmental condition of the Property.
(x) Lessee shall have paid for all of Lessor’s reasonable Costs incurred with respect to such proposed substitution, including, without limitation, Lessor’s third party inspection costs and expenses with respect to the Substitute Property. Lessee shall be solely responsible for the payment of all Costs resulting from such proposed substitution, regardless of whether such substitution is consummated, including, without limitation, the cost of title insurance and endorsements for Lessor, survey charges, stamp taxes, mortgage taxes, transfer fees, escrow and recoding fees, the cost of environmental due diligence undertaken pursuant to this Section 14.04, including, without limitation, the cost of environmental insurance, the cost of legal opinions, the cost of the appraisal required by this Section 14.04, income and transfer taxes imposed on Lessor as a result of such substitution and the reasonable attorneys’ fees and expenses of counsel to Lessee and Lessor. Lessee shall have paid all reasonable costs and expenses of Mortgagee and the rating agencies incurred in connection with the substitution.
(xi) Lessor shall have received annual operating statements, in substantially the same form as provided with respect to the Properties, for the Substitute Property for the most current completed fiscal year and a current operating statement for the Replaced Property, each Series certified by Lessee to Lessor as being true and any Programme Document have correct in all material respects and a certificate from Lessee certifying that, to Lessee’s knowledge, there has been obtained and (b) no material adverse change in the financial condition of the Substitute Property since the date of such approvals and consents are operating statements. Notwithstanding the foregoing, in the event that the Substitute Property has recently opened for business at the time of substitution in full force and effect;so that a current operating statement is not available, Lessee shall deliver a pro forma operating statement reasonably acceptable to Lessor for such Substitute Property.
(Exii) Lessee shall have delivered to Lessor an estoppel certificate in accordance with Section 9.05 of this Lease.
(xiii) Mortgagee shall have received from Lessee subordination agreements substantially in compliance with the provisions of Section 13.02 hereof (or such other form approved by Mortgagee, which approval shall not be unreasonably withheld so long as such form complies with Section 13.02) with respect to this Lease.
(xiv) Lessor shall have received a title policy endorsement or a letter from the appropriate taxing authority stating that the Substitute Property constitutes a separate tax lot.
(xv) Lessor shall have received a property condition report with respect to the Substitute Property stating that the Substitute Property and its use comply in all material respects with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and that the Substitute Property is in good condition and repair and free of damage or waste.
(xvi) Lessor shall have received such other approvals, opinions, documents and information in connection with the substitution as reasonably requested by the rating agencies if the loan with Mortgagee is part of a Securitization, or as otherwise reasonably requested by Lessor, any Mortgagee or Lender.
(xvii) Lessee shall deliver, or cause to be delivered, with respect to Lessee and the Substitute Property, such legal opinions as Lessor may reasonably require in form and substance reasonably acceptable to Lessor, limited however, to Lessee and the Substitute Property (but also addressing such matters unique to the Substitute Property as may be reasonably required by Lessor). If any loan made by Mortgagee relating to the Replaced Property is part of a Securitization, such opinions shall include, without limitation, an opinion of counsel to the rating agencies which have issued ratings in connection with such Securitization that the substitution does not constitute a “significant modification” of such loan under Section 1001 of the Code, otherwise cause a tax to be imposed on a “prohibited transaction” by any REMIC Trust, or cause any material adverse federal income tax consequences.
(xviii) Lessee shall have executed such documents as may be reasonably required by Lessor as a result of such substitution, including amendments to this Lease and any memorandum of this Lease (the “Substitute Documents”), all of which documents shall be in form and substance reasonably satisfactory to Lessor.
(xix) Lessee shall deliver an officer’s certificate certifying that the requirements set forth in this Section 14.04 have been satisfied. Upon satisfaction of the foregoing conditions set forth in Section 14.04(a), (i) the Issuer Substitute Property shall be deemed substituted for the Replaced Property; (ii) the Substitute Property shall be referred to herein as a “Property” and included within the Substituted Obligor will execute definition of “Properties”; (iii) the Substitute Documents shall be dated as of the date of the substitution; and (iv) the Issuer Released Property shall procure that be released from this Lease and Lessor shall convey the Margin Loan Provider Replaced Property to Lessee or a designee of Lessee “as is” by special warranty deed, subject to the Permitted Encumbrances (excluding any mortgage corresponding to the Replaced Property and any other Programme Party will execute consensual liens granted by Lessor, except for those granted by Lessor at the request of Lessee), and without representation or warranty except for those contained in such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionspecial warranty deed.
Appears in 2 contracts
Sources: Master Lease Agreement, Master Lease Agreement (O Charleys Inc)
Substitution. 13.2.1 The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderBondholders, agree to the substitution, substitution of the Issuer’s successor in business or any Subsidiary of the Issuer or the Guarantor or any of their successors in business (the “Substituted Obligor”) in place of the Issuer (or of any previous substitutesubstitute under this sub-Clause) as the principal debtor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Agency Agreement and the ETP Securities Bonds and the Trustee may, without the consent of each Seriesthe Bondholders, agree to the substitution of the Guarantor’s successor in business or any other company Subsidiary of the Guarantor or its successor in business (incorporated in any jurisdiction) (any such substitute company being the "also a “Substituted Obligor")”) in place of the Guarantor (or any previous substitute under this sub-Clause) as the guarantor under this Trust Deed, the Agency Agreement and the Bonds, in each case provided that:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by this Trust Deed, the Security Documents Agency Agreement and the ETP Securities of each Series Bonds (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Agency Agreement and the ETP Securities Bonds as the principal debtor in place of the IssuerIssuer or as the guarantor in place of the Guarantor as the case may be;
(Bii) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant “Substituted Territory”) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action authority of or in which) the Issuer is subject generally (the “Issuer’s Territory”) or to which the Guarantor is subject generally (the “Guarantor’s Territory”), the Substituted Obligor will (unless the Trustee otherwise agrees) give to the Trustee an undertaking satisfactory to the Trustee in terms corresponding to Condition 8 with the substitution for the references in that Condition to the Issuer’s Territory or the Guarantor’s Territory, as the Trustee case may require so that the Security constitutes a valid chargebe, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of references to the Substituted ObligorTerritory whereupon this Trust Deed, the Agency Agreement and the Bonds will be read accordingly;
(Ciii) if any director two directors of the Substituted Obligor certifies certify in writing to the Trustee that it will be solvent immediately after such substitution, substitution (upon which certification the Trustee may rely upon without further enquiry and without liability). The Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the IssuerIssuer or the Guarantor;
(Div) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer Guarantor and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersBondholders; and
(Hv) a legal opinion satisfactory to (unless the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (Issuer’s successor in business or a previous substitute) from any or all of its obligations under the Security Documentswhere relevant, the ETP Securities and Guarantor or its successor in business is the other relevant Programme Documents. The Substituted Obligor shall give notice Obligor) the obligations of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditionsunder this Trust Deed, the Security Documents, the other Programme Documents Agency Agreement and the ETP Securities Bonds are guaranteed by the Guarantor on the same terms (with consequential amendments as necessary) as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect Guarantee to the substitutionTrustee’s satisfaction.
Appears in 1 contract
Sources: Trust Deed
Substitution.
(a) The Trustee may, without the previous consent or sanction of the ETP Securityholdersholders of the Notes, but subject to the prior consent Coupons or Talons of each Authorised Participant and the Margin Loan Providerany Series, agree with the Issuer to the substitution, in place of the Issuer (or of any previous substitute) as the principal debtor under this Trust Deed in relation to the Security DocumentsNotes, the other Programme Documents to which it is a party Coupons and the ETP Securities Talons of each Seriesany Series and under such Notes, Coupons and Talons, of any Holding Company or of any subsidiary of the Issuer (hereinafter called the Substituted Issuer) PROVIDED THAT:
(i) a trust deed is executed or some other company form of undertaking is given by the Substituted Issuer to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the terms of this Trust Deed and the Notes, Coupons and Talons of the relevant Series, with any consequential amendments which the Trustee may deem appropriate, as fully as if the Substituted Issuer had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Issuer and had been named on the Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;
(incorporated ii) the Trustee shall be satisfied that (x) the Substituted Issuer has obtained all necessary governmental and regulatory approvals and consents necessary for its assumption of the obligations and liabilities as principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of the relevant Series and under such Notes, Coupons and Talons in place of the Issuer and (y) such approvals and consents are at the time of substitution in full force and effect;
(iii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Substituted Issuer at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Substituted Issuer comply with such other requirements as the Trustee may direct or require in the interests of the holders of the Notes of the relevant Series;
(v) without prejudice to the generality of subparagraphs (i), (ii), (iii) and (iv) of this Clause 15.3(a), where the Substituted Issuer is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any jurisdiction) (authority in, a territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 7 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Substituted Issuer is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any authority of or in which, the Substituted Issuer is otherwise subject generally and in the event of any such substitute company covenant being given the "provisions of this Trust Deed shall be read and construed accordingly;
(vi) in the case of any Tier 2 Notes, the obligations of the Substituted Obligor"Issuer in respect of such Tier 2 Notes, Coupons and Talons shall be subordinated on a basis equivalent to that referred to in Condition 2;
(vii) if the directors of the Substituted Issuer shall certify to the Trustee that it is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(viii) without prejudice to the rights of reliance of the Trustee under paragraph (vii) of this Clause 15.3(a), provided thatthe Trustee is satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes and Coupons of the relevant Series. Upon the execution of such documents and compliance with the said requirements:
(A) the Substituted Issuer shall be deemed to be named in this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and on such Notes, Coupons and Talons as principal debtor in place of the Issuer and this Trust Deed and the relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution;
(B) the Issuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Clause 15.3(a), be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and such Notes, Coupons and Talons; and
(C) the Issuer shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the holders of the Notes of the relevant Series in accordance with Condition 13.
(b) The Trustee may, without the previous consent or sanction of the holders of the Notes, Coupons or Talons of any Series, agree with the Issuer to the substitution, in place of the Issuer as the principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of any Series and under such Notes, Coupons and Talons of a Successor in Business PROVIDED THAT:
(i) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Successor in Business to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of this Trust Deed and the ETP Securities Notes, Coupons and Talons of each Series (the relevant Series, with such any consequential amendments as which the Trustee may deem appropriate) , as fully as if the Substituted Obligor Successor in Business had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Security Documents Issuer and had been named on the ETP Securities Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(Dii) the Trustee will shall be satisfied (if it requires, by reference to legal opinions) that (ax) the Successor in Business has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with its assumption of the assumption by the Substituted Obligor of liability obligations and liabilities as principal debtor under this Trust Deed in respect ofrelation to the Notes, Coupons and Talons of its obligations under, the ETP Securities of each relevant Series and any Programme Document have been obtained under such Notes, Coupons and Talons in place of the Issuer and (by) such approvals and consents are at the time of substitution in full force and effect;effect;
(Eiii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Successor in Business at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require Successor in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor Business comply with such other requirements as the Trustee may direct or require in the interests of the ETP Securityholders; andholders of the Notes of the relevant Series;
(Hv) without prejudice to the generality of paragraphs (i), (ii), (iii) and (iv) of this Clause 15.3(b), where the Successor in Business is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a legal opinion satisfactory territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 7 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Successor in Business is incorporated, domiciled or resident or the taxing jurisdiction of which, or of any authority of or in which, the Successor in Business is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) if the directors of the Successor in Business shall certify to the Trustee that it is provided concerning solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(vii) without prejudice to the rights of reliance of the Trustee under paragraph (vi) of this Clause 15.3(b), the Trustee is satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes of the relevant Series. Upon the execution of such documents and compliance with the said requirements:
(A) the Successor in Business shall be deemed to be named in this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and on such Notes, Coupons and Talons as principal debtor in place of the Issuer and this Trust Deed and the relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any proposed supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution. An ;
(B) the Issuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents willClause 15.3(b), if so expressed, release the Issuer (or a previous substitute) be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Security DocumentsNotes, Coupons and Talons of the ETP Securities relevant Series and such Notes, Coupons and Talons; and
(C) the other relevant Programme Documents. The Substituted Obligor shall Issuer or the Successor in Business shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the ETP Securityholders within 14 calendar days holders of the execution of such documents and compliance with such requirements. On completion Notes of the formalities set out relevant Series in this accordance with Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution13.
Appears in 1 contract
Sources: Trust Deed
Substitution. (1) The Trustee may, may without the consent of the ETP Securityholders, but subject Holders or Couponholders at any time agree with the Issuer to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution in place of the Issuer (or of any the previous substitutesubstitute under this Clause) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, these presents of any other company Subsidiary of the Issuer (incorporated in any jurisdiction) (any such substitute substituted company being hereinafter called the "Substituted ObligorNew Company"), ) provided that:
(A) that a deed Trust Deed is executed or some other form of undertaking is given by the Substituted Obligor to the Trustee, New Company in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities provisions of each Series (these presents with such any consequential amendments as which the Trustee may deem appropriate) appropriate as fully as if the Substituted Obligor New Company had been named in the Security Documents and the ETP Securities these presents as the principal debtor in place of the Issuer;Issuer (or of the previous substitute under this Clause) and provided further that (save where the Issuer has transferred the PES Licence to the New Company) the Issuer unconditionally and irrevocably guarantees all amounts payable under these presents.
(B2) the Substituted Obligor assumes all rights, obligations and liabilities in relation The following further conditions shall apply to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;(1) above:
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(Ei) the Issuer and the Substituted Obligor will execute and the Issuer New Company shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; andHolders;
(Hii) where the New Company is incorporated, domiciled or resident in, or subject generally to the taxing jurisdiction of, a legal opinion satisfactory territory other than or in addition to the United Kingdom or any political sub-division or any authority therein or thereof having power to tax, undertakings or covenants shall be given by the New Company in terms corresponding to the provisions of Condition 8 with the substitution for (or, as the case may be, the addition to) the references to the United Kingdom of references to that other or additional territory in which the New Company is incorporated, domiciled or resident or to whose taxing jurisdiction it is subject and (where applicable) Condition 6(c) shall be modified accordingly;
(iii) without prejudice to the rights of reliance of the Trustee under the immediately following paragraph (iv), the Trustee is provided concerning any satisfied that the relevant transaction is not materially prejudicial to the interests of the Holders; and Back to Contents
(iv) if two Directors of the New Company (or other officers acceptable to the Trustee) shall certify that the New Company is solvent at the time at which the relevant transaction is proposed substitution. An agreement by to be effected (which certificate the Trustee pursuant may rely upon absolutely) the Trustee shall not be under any duty to have regard to the financial condition, profits or prospects of the New Company or to compare the same with those of the Issuer or the previous substitute under this Condition 14.3 and the Security Documents willClause as applicable.
(B) Any such Trust Deed or undertaking shall, if so expressed, operate to release the Issuer (or a the previous substitute) substitute as aforesaid from any or all of its obligations qua principal debtor under the Security Documents, the ETP Securities and the other relevant Programme Documentsthese presents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within Not later than 14 calendar days of after the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor New Company shall give notice thereof in a form previously approved by the Trustee to the Holders in the manner provided in Condition 14. Upon the execution of such documents and compliance with such requirements, the New Company shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents as the principal debtor in place of the Issuer (or in place of any the previous substitutesubstitute under this Clause) under these presents and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents shall be deemed to be amended in such manner as shall be necessary to give effect to the substitutionabove provisions and, without limitation, references in these presents to the Issuer shall, where the context so requires, be deemed to be or include references to the New Company.
Appears in 1 contract
Sources: Trust Deed (United Utilities PLC)
Substitution. 13.2.1 The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderNoteholders, agree to the substitution, substitution of the Issuer's successor in business or any Subsidiary of the Issuer or the Guarantor or its successor in business (the "Substituted Obligor") in place of the Issuer (or of any previous substitutesubstitute under this Clause 13.2) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party this Trust Deed and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Notes provided that:
(Aa) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents this Trust Deed and the ETP Securities of each Series Notes (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents this Trust Deed and the ETP Securities Notes as the principal debtor in place of the Issuer;
(Bb) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant "Substituted Territory") other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the Issuer is subject generally (the "Issuer's Territory"), the Substituted Obligor will (unless the Trustee may require so that otherwise agrees) give to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 8 with the Issuer substitution for the obligations references in that Condition to the Issuer's Territory of references to the Substituted ObligorTerritory whereupon the Trust Deed and the Notes will be read accordingly;
(Cc) if any director an Officer of the Substituted Obligor certifies that it the Substituted Obligor will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s 's financial condition, profits or prospects or compare them with those of the IssuerIssuer or the Guarantor;
(Dd) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer Guarantor and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersNoteholders; and
(He) a legal opinion satisfactory to (unless the Trustee Issuer's successor in business is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and Substituted Obligor) the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all obligations of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents under this Trust Deed and the ETP Securities Notes are guaranteed by the Issuer in the same terms (with consequential amendments as necessary) as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect Guarantees to the substitutionTrustee's satisfaction.
Appears in 1 contract
Sources: Trust Deed
Substitution. The Trustee maymay (but shall not be obliged to), without with the consent approval in writing by Bondholders holding not less than 50% of the ETP Securityholders, but subject to the prior consent principal amount of each Authorised Participant and the Margin Loan ProviderBonds outstanding or by an Ordinary Resolution, agree to the substitution, substitution of any other company (the Substituted Obligor) in place of the Issuer (or of any previous substitutesubstitute under this sub-Clause) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party this Trust Deed and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Bonds provided that:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents this Trust Deed and the ETP Securities of each Series Bonds (with such consequential amendments as the Trustee in its sole discretion may deem appropriate) as if the Substituted Obligor had been named in the Security Documents this Trust Deed and the ETP Securities Bonds as the principal debtor in place of the Issuer;
(Bii) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant Substituted Territory) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the Issuer is subject generally (the Issuer’s Territory), the Substituted Obligor will (unless the Trustee may require so that otherwise agrees) give to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 9 with the Issuer substitution for the obligations references in that Condition to the Issuer’s Territory of references to the Substituted ObligorTerritory whereupon the Trust Deed and the Bonds will be read accordingly;
(Ciii) if any director two directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;; Bella - Trust Deed
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(Giv) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersBondholders; and
(Hv) a legal opinion satisfactory to (unless the Trustee Issuer’s successor in business is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place under this Trust Deed and the Bonds) the obligations of the Issuer (or of any previous substitute) and these Conditions, Substituted Obligor as the Security Documents, the other Programme Documents principal debtor under this Trust Deed and the ETP Securities shall be deemed to be amended as necessary to give effect Bonds are guaranteed by the Issuer to the substitutionTrustee’s satisfaction.
Appears in 1 contract
Sources: Trust Deed (Las Vegas Sands Corp)
Substitution. The 17.1 If so requested by the Issuer the Trustee may, shall (subject to being indemnified and/or secured and/or prefunded to its satisfaction) without the consent of the ETP SecurityholdersNoteholders, but subject to agree with the prior consent of each Authorised Participant Issuer and the Margin Loan Provider, agree Borrower to the substitution, in place of the Issuer (or of any previous substituteSubstitute (as defined below) under this sub-clause), as the principal debtor obligor under these presents and under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each SeriesNotes, of any other company entity (incorporated in any jurisdictionthis Clause called the “Substitute”) (any such substitute company being the "Substituted Obligor"), provided that:
(A) 17.1.1 a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Substitute to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of these presents, the Notes with any consequential or other amendments which may be appropriate as fully as if the Substitute had been named in these presents on the Notes as the principal obligor in place of the Issuer (or any such previous Substitute);
17.1.2 the Issuer shall deliver to the Trustee a certificate signed by two directors of the Issuer stating that immediately after giving effect to such substitution no Event of Default or Potential Event of Default shall have occurred and be continuing;
17.1.3 the Substitute shall have acquired the rights and assumed the obligations of the Issuer under or in connection with all Loan Agreements in effect with the consent of the Borrower and the ETP Securities Account or any equivalent account opened in the name of each Series (with the Substitute replacing the Account and such rights shall have been effectively charged in favour of, and assigned to, the Trustee in a manner satisfactory to the Trustee and such consequential amendments to the Loan Agreement and these presents as the Trustee may deem appropriatereasonably require shall have been made (including, without prejudice to the generality of the foregoing, but subject to 17.1.6 below, the
17.1.4 two directors (or other equivalent officers) as if of the Substituted Obligor had been named in Substitute shall certify to the Security Documents Trustee that the Substitute is solvent at the time at which the said substitution is proposed to be effected, and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation Trustee shall not be bound to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects of the Substitute or to compare them the same with those of the IssuerIssuer or (as the case may be) the previous Substitute;
17.1.5 (Dwithout prejudice to the generality of paragraphs 17.1.1 to 17.1.5 (inclusive) of this Clause 17.1) where the Substitute is incorporated, domiciled or resident in a territory other than the United Kingdom (which territory must benefit from a tax treaty reducing withholding tax in the Russian Federation to zero or otherwise not result in withholding tax in the Russian Federation), undertakings or covenants are given in terms corresponding to the provisions of Condition 8 with the substitution for the references to the United Kingdom for references to the territory in which the Substitute is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any political subdivision or authority of or in which, the Substitute is otherwise subject generally; and
17.1.6 the Issuer shall deliver to the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor an enforceability legal opinion in respect of, and of its obligations under, the ETP Securities law of each Series and any Programme Document have been obtained and England; (b) such approvals capacity, enforceability and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements tax legal opinions in the interests jurisdiction of incorporation of the ETP Securityholders as the Trustee may direct;
Substitute and (Fc) capacity legal opinion in connection with any proposed substitution respect of law of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of lawRussian Federation, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer each case in form and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion substance satisfactory to the Trustee is provided concerning any proposed substitution. An Trustee.
17.2 Any such agreement by the Trustee pursuant to this Condition 14.3 and Clause 17.1 shall, to the Security Documents will, if extent so expressed, operate to release the Issuer or previous Substitute (or a previous substituteas the case may be) from any or all of its obligations under these presents (insofar as it affects the Security Documents, the ETP Securities relevant Series) and the other relevant Programme DocumentsNotes. The Substituted Obligor Not later than 14 days after the execution of any such documents as aforesaid and after compliance with the Trustee's said requirements, notice thereof shall give notice of be given by the substitution Issuer to the ETP Securityholders within 14 calendar days of Noteholders in the manner provided in Condition 14.
17.3 Upon the execution of such documents and compliance with such the said requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor Substitute shall be deemed to be named in these Conditions, presents and on the Security Documents, the other Programme Documents and the ETP Securities Notes as the principal debtor obligor in place of the Issuer or previous Substitute (or of any previous substituteas the case may be) and these Conditions, presents (insofar as it affects the Security Documents, the other Programme Documents relevant Series) and the ETP Securities Notes shall thereupon be deemed to be amended in such manner as shall be necessary to give effect to the substitution and, without prejudice to the generality of the foregoing, any references in these presents and in the Notes to the Issuer shall be deemed to be references to the Substitute.
17.4 In connection with any proposed substitution., the Trustee shall not have regard to, or be in any way liable for, the consequences of such substitution for individual Noteholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory. No Noteholder shall, in connection with any such substitution, be entitled to claim from the Issuer any
17.5 Notwithstanding the foregoing, the Trustee shall be entitled to refuse to approve any Substitute, if, pursuant to the law of the country of incorporation, domicile or residence of the Substitute, the assumption by the Substitute of its obligations imposes responsibilities on the Trustee over and above those which have been assumed under these presents. 18 Trustee may enter into financial transactions with the Issuer or the Borrower
Appears in 1 contract
Sources: Principal Trust Deed
Substitution. The Trustee mayEach Bank may transfer, without by way of novation, all or any part of its rights, benefits and/or obligations under this Agreement to another person subject to a minimum transfer amount of ten million Dollars ($10,000,000) to be transferred (a “Substitute”) and provided that no Default has occurred and is continuing the consent of the ETP Securityholders, but subject Borrower (which consent shall not be unreasonably withheld or delayed). Any such novation shall be effected upon five (5) Banking Days’ prior notice by delivery to the prior consent Agent of each Authorised Participant a duly completed Substitution Certificate duly executed by such Bank, the Substitute and the Margin Loan ProviderAgent (for itself, agree the Borrower and the other Banks) and following receipt by the transferring Bank from the Substitute of an amount equal to the substitutionpurchase price to be paid by the Substitute for the Contribution being transferred. On the effective date specified in a Substitution Certificate so executed and delivered, to the extent that they are expressed in place such Substitution Certificate to be the subject of the Issuer (or of any previous substitute) as novation effected pursuant to this clause 15.4:
15.4.1 the principal debtor under the Security Documents, the other Programme Documents existing parties to which it is a party this Agreement and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor Bank party to the Trustee, in form relevant Substitution Certificate shall be released from their respective obligations towards one another under this Agreement (“discharged obligations”) and manner satisfactory their respective rights against one another under this Agreement (“discharged rights”) shall be cancelled;
15.4.2 the Substitute party to the Trustee, agreeing to be bound by the Security Documents relevant Substitution Certificate and the ETP Securities existing parties to this Agreement (other than the Bank party to such Substitution Certificate) shall assume obligations towards each other which differ from the discharged obligations only insofar as they are owed to or assumed by such Substitute instead of each Series (with to or by such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersBank; and
(H) a legal opinion satisfactory 15.4.3 the Substitute party to the Trustee is provided concerning any proposed substitution. An agreement by relevant Substitution Certificate and the Trustee pursuant existing parties to this Condition 14.3 and Agreement (other than the Security Documents willBank party to such Substitution Certificate) shall acquire rights against each other which differ from the discharged rights only insofar as they are exercisable by or against such Substitute instead of by or against such Bank and, if so expressed, release on the Issuer (or a previous substitute) from any or all of its obligations under the Security Documentsdate upon which such novation takes effect, the ETP Securities and Substitute shall pay to the Agent for its own account a transfer fee of three thousand Dollars ($3,000). The Agent shall promptly notify the other relevant Programme Documents. The Substituted Obligor shall give notice parties hereto of the substitution receipt by it of any Substitution Certificate and shall promptly deliver a copy of such Substitution Certificate to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionBorrower.
Appears in 1 contract
Sources: Facilities Agreement (Omega Navigation Enterprises, Inc.)
Substitution. The Trustee maymay (but is not obliged to), without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderBondholders, agree to the substitution, substitution of any other company (the “Substituted Obligor”) in place of the Issuer (or of any previous substitutesubstitute under this sub-Clause) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party this Trust Deed and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Bonds provided that:
(Aa) no payment in respect of the Bonds is at the relevant time overdue;
(b) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents this Trust Deed and the ETP Securities of each Series Bonds (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents this Trust Deed and the ETP Securities Bonds as the principal debtor in place of the Issuer;
(Bc) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant “Substituted Territory”) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the Issuer is subject generally (the “Issuer’s Territory”), the Substituted Obligor has given (unless the Trustee may require so that otherwise agrees) to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 10 with the Issuer substitution for the obligations references in that Condition to the Issuer’s Territory of references to the Substituted ObligorTerritory whereupon this Trust Deed and the Bonds will be read accordingly;
(Cd) if any director two (2) directors of the Substituted Obligor certifies that it will be solvent immediately after such substitution, ;
(e) (unless the Trustee need not have regard to Issuer’s successor in business is the Substituted Obligor’s financial condition, profits or prospects or compare them with those Obligor as the principal debtor under this Trust Deed and the Bonds) the obligations of the Substituted Obligor as the principal debtor under this Trust Deed and the Bonds are unconditionally and irrevocably guaranteed by the Issuer;
(Df) a certificate signed by two (2) duly authorised signatories of the Issuer stating that the circumstances referred to in this Clause prevail and legal opinions addressed to the Trustee from independent legal advisors of recognised standing in each jurisdiction referred to in (c) above, in form and substance satisfactory to the Trustee, as to the fulfilment of the conditions set out in full in this Clause have been delivered to the Trustee and the Trustee shall not be liable to anyone for relying on such certificates and legal opinions; and
(g) the Issuer shall have given, unless the Trustee agrees otherwise, at least fourteen (14) days’ prior notice of such substitution to the Bondholders, stating that copies, or pending execution the agreed text, of all documents in relation to the substitution which are referred to above, or which might otherwise reasonably be regarded as material to Bondholders, will be satisfied available for inspection at the specified office of the Principal Agent. References in Condition 11 to obligations under the Bonds shall be deemed to include obligations under the supplemental trust deed, and the events listed in Condition 11 shall be deemed to include any guarantee referred to in (if it requires, by reference to legal opinionse) that above not being (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption being claimed by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (bIssuer not to be) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer effect and the Substituted Obligor will execute provisions in Condition 11(A)(iv), (v), (vi), (vii), (viii) and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if anyix) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of apply to the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionguarantor.
Appears in 1 contract
Sources: Trust Deed Amendment (China Architectural Engineering, Inc.)
Substitution. The Trustee mayIssuer, or any previously substituted company, may at any time, without the consent of the ETP SecurityholdersNoteholders or the Couponholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place of the Issuer (or of any previous substitute) substitute for itself as the principal debtor under the Security Documents, the other Programme Documents to which it is a party Notes and the ETP Securities of each Series, of any other Coupons a company (incorporated the Substitute) as principal debtor under the Notes or Coupons in any jurisdiction) the manner specified in Schedule 6 to the Agency Agreement, provided that no payment in respect of the Notes or the Coupons is at the relevant time overdue. The substitution shall be made by a deed poll (any such substitute company being the "Substituted Obligor"Deed Poll), provided thatto be substantially in the form exhibited to the Agency Agreement, and may take place only if:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted ObligorSubstitute under the Deed Poll, the Notes and the Coupons shall be unconditionally and irrevocably guaranteed by Equinor ASA (in such capacity, the New Guarantor and such guarantee, the New Guarantee) and (in the case of Notes having the benefit of the Guarantee) the Guarantor, by means of the Deed Poll;
(Cii) if all action, conditions and things required to be taken, fulfilled and done (including the obtaining of any director necessary consents) to ensure that the Deed Poll, the Notes and Coupons represent valid, legally binding and enforceable obligations of the Substituted Obligor certifies that it will be solvent immediately after such substitution, Substitute and in the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those case of the Issuer;
Deed Poll of the New Guarantor and (Din the case of Notes having the benefit of the Guarantee) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document Guarantor have been obtained taken, fulfilled and (b) such approvals done and consents are at the time of substitution in full force and effect;
(Eiii) the Substitute shall have become party to the Agency Agreement, with any appropriate consequential amendments, as if it had been an original party to it;
(iv) each stock exchange or listing authority which has the Notes listed on such stock exchange shall have confirmed that following the proposed substitution of the Substitute the Notes would continue to be listed on such stock exchange;
(v) legal opinions addressed to the Noteholders shall have been delivered to them (care of the Agent) from a lawyer or firm of lawyers with a leading securities practice in (i) the Kingdom of Norway and, if applicable, any Substitute Jurisdiction (as defined in the final paragraph of this Condition 14 (Substitution)) and (ii) England, in each case as to the fulfilment of the preceding conditions of this Condition 14 (Substitution) and the other matters specified in the Deed Poll; and
(vi) the Issuer shall have given at least 14 days' prior notice of such substitution to the Noteholders, stating that copies, or, pending execution, the agreed text, of all documents in relation to the substitution which are referred to above, or which might otherwise reasonably be regarded as material to Noteholders, will be available for inspection at the specified office of each of the Paying Agents. References in Condition 8 (Events of Default) to obligations under the Notes shall be deemed to include obligations under the Deed Poll, and the Substituted Obligor will execute events listed in Condition 8 (Events of Default) shall be deemed to include the New Guarantee not being (or being claimed by the New Guarantor not to be) in full force and effect and the Issuer shall procure that provisions of Condition 8(c) to 8(e) (Events of Default) inclusive (other than the Margin Loan Provider and any words "other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require than in order that such substitution is fully effective and comply with such other requirements in the interests respect of the ETP Securityholders as termination of the Trustee may direct;
Guarantee pursuant to Condition 2(c) (F) in Termination of In connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will14 (Substitution), if so expressed, release the Issuer (or previously substituted company, as the case may be) or Substitute shall not be required to have regard to, or be in any way liable for, the consequences of such substitution for individual Noteholders or the Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory. No Noteholder or Couponholder shall, in connection with any such substitution, be entitled to claim from the Issuer (or previously substituted company, as the case may be) or Substitute any indemnification or payment in respect of any tax consequence of any such substitution upon such individual Noteholders or Couponholders, except to the extent already provided in Condition 6 (Taxation) as modified in accordance with the following paragraph. Where a previous substitutesubstitution takes place pursuant to this Condition 14 (Substitution) from any or all and the Substitute is subject, by reason of its obligations incorporation or residence for tax purposes, to a jurisdiction or any political subdivision or any authority thereof or therein having power to tax (the Substitute Jurisdiction) other than the Kingdom of Norway (or, as the case may be, the jurisdiction of incorporation or residence for tax purposes of the preceding substituted company) or any political subdivision or any authority thereof or therein having power to tax (the Previous Jurisdiction), references to the Previous Jurisdiction in Condition 5(b) (Redemption for Tax Reasons) and Condition 6 (Taxation) shall, in respect of any payments to be made by the Substitute (but not in respect of payments to be made by (A) the New Guarantor under the Security Documents, New Guarantee or (B) (in the ETP Securities and case of Notes having the other relevant Programme Documents. The Substituted Obligor shall give notice benefit of the substitution Guarantee) the Guarantor), be deemed to be replaced by references to the ETP Securityholders within 14 calendar days of the execution of such documents Substitute Jurisdiction, and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 Conditions 5(b) (Redemption for Tax Reasons) and the Security Documents, the Substituted Obligor 6 (Taxation) shall be deemed to be named in these Conditions, modified accordingly when the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionsubstitution takes place.
Appears in 1 contract
Sources: Agency Agreement
Substitution.
(a) The Trustee may, without the previous consent or sanction of the ETP Securityholdersholders of the Notes, but subject to the prior consent Coupons or Talons of each Authorised Participant and the Margin Loan Providerany Series, agree with the Issuer to the substitution, in place of the Issuer (or of any previous substitute) as the principal debtor under this Trust Deed in relation to the Security DocumentsNotes, the other Programme Documents to which it is a party Coupons and the ETP Securities of each SeriesTalons of any Series and under such Notes, Coupons and Talons, of any other company Holding Company or of any subsidiary of the Issuer (incorporated in any jurisdictionhereinafter called the Substituted Issuer) (any such substitute company being the "Substituted Obligor"), provided thatPROVIDED THAT:
(Ai) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Issuer to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of this Trust Deed and the ETP Securities Notes, Coupons and Talons of each Series (the relevant Series, with such any consequential amendments as which the Trustee may deem appropriate) , as fully as if the Substituted Obligor Issuer had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Security Documents Issuer and had been named on the ETP Securities Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;Issuer;
(Bii) the Trustee shall be satisfied that (x) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with its assumption of the assumption by the Substituted Obligor of liability obligations and liabilities as principal debtor under this Trust Deed in respect ofrelation to the Notes, Coupons and Talons of its obligations under, the ETP Securities of each relevant Series and any Programme Document have been obtained under such Notes, Coupons and Talons in place of the Issuer and (by) such approvals and consents are at the time of substitution in full force and effect;effect;
(Eiii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Substituted Issuer at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct or require in the interests of the ETP Securityholders; andholders of the Notes of the relevant Series;
(Hv) without prejudice to the generality of subparagraphs (i), (ii), (iii) and (iv) of this Clause 15.3(a), where the Substituted Issuer is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a legal opinion satisfactory territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 7 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Substituted Issuer is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any authority of or in which, the Substituted Issuer is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) in the case of any Tier 2 Notes, the obligations of the Substituted Issuer in respect of such Tier 2 Notes, Coupons and Talons shall be subordinated on a basis equivalent to that referred to in Condition 2;
(vii) if the directors of the Substituted Issuer shall certify to the Trustee that it is provided concerning solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(viii) without prejudice to the rights of reliance of the Trustee under paragraph (vii) of this Clause 15.3(a), the Trustee is satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes and Coupons of the relevant Series. Upon the execution of such documents and compliance with the said requirements:
(A) the Substituted Issuer shall be deemed to be named in this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and on such Notes, Coupons and Talons as principal debtor in place of the Issuer and this Trust Deed and the relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any proposed supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution. An ;
(B) the Issuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents willClause 15.3(a), if so expressed, release the Issuer (or a previous substitute) be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Security DocumentsNotes, Coupons and Talons of the ETP Securities relevant Series and such Notes, Coupons and Talons; and
(C) the other relevant Programme Documents. The Substituted Obligor shall Issuer shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the ETP Securityholders within 14 calendar days holders of the Notes of the relevant Series in accordance with Condition 13.
(b) The Trustee may, without the previous consent or sanction of the holders of the Notes, Coupons or Talons of any Series, agree with the Issuer to the substitution, in place of the Issuer as the principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of any Series and under such Notes, Coupons and Talons of a Successor in Business PROVIDED THAT:
(i) a trust deed is executed or some other form of undertaking is given by the Successor in Business to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the terms of this Trust Deed and the Notes, Coupons and Talons of the relevant Series, with any consequential amendments which the Trustee may deem appropriate, as fully as if the Successor in Business had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Issuer and had been named on the Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;
(ii) the Trustee shall be satisfied that (x) the Successor in Business has obtained all necessary governmental and regulatory approvals and consents necessary for its assumption of the obligations and liabilities as principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of the relevant Series and under such Notes, Coupons and Talons in place of the Issuer and (y) such approvals and consents are at the time of substitution in full force and effect;
(iii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Successor in Business at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Successor in Business comply with such other requirements as the Trustee may direct or require in the interests of the holders of the Notes of the relevant Series;
(v) without prejudice to the generality of paragraphs (i), (ii), (iii) and (iv) of this Clause 15.3(b), where the Successor in Business is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 7 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Successor in Business is incorporated, domiciled or resident or the taxing jurisdiction of which, or of any authority of or in which, the Successor in Business is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) if the directors of the Successor in Business shall certify to the Trustee that it is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(vii) without prejudice to the rights of reliance of the Trustee under paragraph (vi) of this Clause 15.3(b), the Trustee is satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes of the relevant Series. Upon the execution of such documents and compliance with such the said requirements. On completion of :
(A) the formalities set out Successor in this Condition 14.3 and the Security Documents, the Substituted Obligor Business shall be deemed to be named in these Conditionsthis Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the Security Documentsrelevant Series and on such Notes, the other Programme Documents Coupons and the ETP Securities Talons as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents this Trust Deed and the ETP Securities relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution;
(B) the substitutionIssuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Clause 15.3(b), be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and such Notes, Coupons and Talons; and
(C) the Issuer or the Successor in Business shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the holders of the Notes of the relevant Series in accordance with Condition 13.
Appears in 1 contract
Sources: Supplemental Trust Deed
Substitution. The Trustee mayEach Bank (a "Transferor Bank") may transfer, without by way of novation, all or any part of its rights, benefits and/or obligations under this Agreement and the Security Trust Deed to any Qualifying Bank (a "Substitute") with the prior written consent of the ETP Securityholders, Borrower (which shall not be unreasonably withheld or delayed) provided that no such consent is necessary if such Substitute is a wholly-owned Subsidiary (being a Qualifying Bank) of such Transferor Bank or a person (being a Qualifying Bank) of whom such Transferor Bank is a wholly-owned Subsidiary if any such transfer would not give rise to any obligation to make any payment on the part of the Borrower which it would not have had to make at such time but subject for such transfer. Any such novation shall be effected upon five Banking Days' prior notice by delivery to the prior consent Agent of each Authorised Participant a duly completed Substitution Certificate duly executed by such Bank, the Substitute and the Margin Loan ProviderAgent (for itself, agree the Arrangers, the Security Trustee, the Borrower, the Charging Subsidiaries and the other Banks). On the effective date specified in a Substitution Certificate so executed and delivered, to the substitution, extent that they are expressed in place such Substitution Certificate to be the subject of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents novation effected pursuant to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thatthis clause 17.4:
(Aa) a deed is executed or undertaking given by the Substituted Obligor existing parties to this Agreement and the Bank party to the Trustee, in form relevant Substitution Certificate shall be released from their respective obligations towards one another under this Agreement and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents Trust Deed ("discharged obligations") and the ETP Securities of each Series their respective rights against one another under this Agreement (with such consequential amendments as the Trustee may deem appropriate"discharged rights") as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuershall be cancelled;
(Bb) the Substituted Obligor assumes all rights, obligations and liabilities in relation Substitute party to the Secured Property, acknowledges relevant Substitution Certificate and the existing parties to this Agreement and the Security created in respect thereof pursuant Trust Deed (other than the Bank party to such Substitution Certificate) shall assume obligations towards each other which differ from the Security Documents and takes all discharged obligations only insofar as they are owed to or assumed by such action as the Trustee may require so that the Security constitutes a valid charge, pledge Substitute instead of to or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligorsuch Bank;
(Cc) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard Substitute party to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer relevant Substitution Certificate and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant existing parties to this Condition 14.3 Agreement and the Security Documents willTrust Deed (other than the Bank party to such Substitution Certificate) shall acquire rights against each other which differ from the discharged rights only insofar as they are exercisable by or against such Substitute instead of by or against such Bank, if so expressed, release and on the Issuer date upon which such novation takes effect (or where such novation takes place after 19 July 1996) the Substitute shall pay to the Agent for its own account a previous substitute) from any or all fee of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documentsoe500. The Substituted Obligor Agent shall give notice promptly notify the Borrower of the substitution receipt by it of any Substitution Certificate and deliver a copy thereof to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionBorrower.
Appears in 1 contract
Substitution. The Trustee mayEach Bank (a "TRANSFEROR BANK") may transfer, without by way of novation, all or any part (being at least (pound)2,000,000 or, less than (pound)2,000,000 if the Bank is a bank under the Senior Loan Agreement and the amount represents its entire Commitment) of its rights, benefits and/or obligations under this Agreement and the Security Trust Deed to any Qualifying Bank (a "SUBSTITUTE") with the prior written consent of the ETP Securityholders, Borrower (which shall not be unreasonably withheld or delayed) provided that no such consent is necessary if such Substitute is a wholly-owned Subsidiary (being a Qualifying Bank) of such Transferor Bank or a person (being a Qualifying Bank) of whom such Transferor Bank is a wholly-owned Subsidiary if any such transfer would not give rise to any obligation to make any payment on the part of the Borrower which it would not have had to make at such time but subject for such transfer. Any such novation shall be effected upon five Banking Days' prior notice by delivery to the prior consent Agent of each Authorised Participant a duly completed Substitution Certificate duly executed by such Bank, the Substitute and the Margin Loan ProviderAgent (for itself, agree the Arrangers, the Security Trustee, the Borrower, the Charging Subsidiaries and the other Banks). On the effective date specified in a Substitution Certificate so executed and delivered, to the substitution, extent that they are expressed in place such Substitution Certificate to be the subject of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents novation effected pursuant to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thatthis clause 17.4:
(Aa) a deed is executed or undertaking given by the Substituted Obligor existing parties to this Agreement and the Bank party to the Trustee, in form relevant Substitution Certificate shall be released from their respective obligations towards one another under this Agreement and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents Trust Deed ("DISCHARGED OBLIGATIONS") and the ETP Securities of each Series their respective rights against one another under this Agreement (with such consequential amendments as the Trustee may deem appropriate"DISCHARGED RIGHTS") as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuershall be cancelled;
(Bb) the Substituted Obligor assumes all rights, obligations and liabilities in relation Substitute party to the Secured Property, acknowledges relevant Substitution Certificate and the existing parties to this Agreement and the Security created in respect thereof pursuant Trust Deed (other than the Bank party to such Substitution Certificate) shall assume obligations towards each other which differ from the Security Documents and takes all discharged obligations only insofar as they are owed to or assumed by such action as the Trustee may require so that the Security constitutes a valid charge, pledge Substitute instead of to or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligorsuch Bank;
(Cc) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard Substitute party to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer relevant Substitution Certificate and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant existing parties to this Condition 14.3 Agreement and the Security Documents willTrust Deed (other than the Bank party to such Substitution Certificate) shall acquire rights against each other which differ from the discharged rights only insofar as they are exercisable by or against such Substitute instead of by or against such Bank and, if so expressed, release on the Issuer date upon which such novation takes effect the Substitute shall pay to the Agent for its own account a fee of (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documentspound)500. The Substituted Obligor Agent shall give notice promptly notify the Borrower of the substitution receipt by it of any Substitution Certificate and deliver a copy thereof to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionBorrower.
Appears in 1 contract
Substitution. (a) The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderNoteholders, agree to the substitution, substitution of the Bank’s successor in business or any Subsidiary of the Bank (the “Substituted Obligor”) in place of the Issuer Bank (or of any previous substitutesubstitute under this Clause 13.2) as the principal debtor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Agency Agreement and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thatNotes if:
(Ai) a trust deed is executed or some other written form of undertaking is given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of this Trust Deed, the Agency Agreement and the ETP Securities of each Series (Notes with such any consequential or other amendments as which the Trustee may deem appropriate) appropriate as fully as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Agency Agreement and on the ETP Securities Notes as the principal debtor in place of the IssuerBank or of any previous substitute under this Clause;
(Bii) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director Obligor as principal debtor in respect of the Substituted Obligor certifies that it will be solvent immediately after such substitution, Notes are unconditionally and irrevocably guaranteed by the Bank and the Trustee need not have regard to is satisfied that the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) Bank has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, such guarantee and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(Eiii) arrangements are made to the Issuer satisfaction of the Trustee for the Noteholders and the Trustee to have or be able to have the same or equivalent rights against the Substituted Obligor will execute and as they have against the Issuer shall procure that the Margin Loan Provider and Bank (or any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may directprevious substitute);
(Fiv) the Trustee is satisfied that the Substituted Obligor has obtained all governmental and regulatory approvals and consents necessary for its assumption of the obligations and liabilities as principal debtor under this Trust Deed and the Agency Agreement and in connection respect of the Notes in place of the Bank (or such previous substitute as aforesaid) and such approvals and consents are at the time of substitution in full force and effect;
(v) without prejudice to the generality of the preceding paragraphs (i) to (iv), where the Substituted Obligor is incorporated, domiciled or resident in a territory other than the Republic of Kazakhstan, undertakings or covenants are given in terms corresponding to the provisions of this Trust Deed and Condition 9 (Taxation), as applicable, with any proposed the substitution or addition to the references to Republic of Kazakhstan, in respect of a substitution of the IssuerBank;
(vi) the Substituted Obligor and the Bank shall have delivered to the Trustee an opinion of independent counsel to the effect that any and all documents entered into by the Bank, the Substituted Obligor and the Trustee mayare valid, without binding and enforceable against the consent of Substituted Obligor and the holders of Bank; and
(vii) the ETP Securities, agree Trustee is satisfied with respect to a change of the law from time to time governing such ETP Securities and/or Notes that the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would said substitution is not be materially prejudicial to the interests of such ETP Securityholders;the Noteholders as a class.
(Gb) The Trustee shall be entitled to refuse to approve any Substituted Obligor if, pursuant to the Issuer law of the country of incorporation, domicile or residence of the Substituted Obligor, the assumption by the Substituted Obligor of its obligations hereunder imposes responsibilities on the Trustee over and above those which have been assumed under this Trust Deed and the Agency Agreement.
(c) The Bank and the Substituted Obligor shall comply with such other requirements as the Trustee may reasonably direct in the interests of the ETP Securityholders; andNoteholders.
(Hd) a legal opinion satisfactory to the Trustee is provided concerning In connection with any proposed substitution. An , the Trustee shall not have regard to, or be in any way liable for, the consequences of such substitution for individual Noteholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory.
(e) The Bank or the Substituted Obligor shall indemnify each Noteholder for any income, gain or loss for tax purposes recognised by such Noteholder as a result of the substitution.
(f) Subject to Clauses 13.2(a)(ii), any such agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents willClause 13.2 (Substitution) shall, if so expressed, operate to release the Issuer Bank (or a such previous substitutesubstitute as aforesaid) from any or all of its obligations as principal debtor under the Security Documentsthis Trust Deed, the ETP Securities Agency Agreement and the other relevant Programme DocumentsNotes. The Not later than 14 days after the execution of any such documents to effect the substitution as aforesaid and after compliance with the said requirements of the Trustee, the Substituted Obligor shall give cause notice of the substitution to be given to the ETP Securityholders within 14 calendar days of Noteholders.
(g) Upon the execution of such documents and compliance with such the said requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditionsthis Trust Deed, the Security Documents, the other Programme Documents Agency Agreement and the ETP Securities Notes as the principal debtor in place of the Issuer Bank (or of any previous substitutesubstitute under this Clause 13.2) and these Conditionsthis Trust Deed, the Security Documents, the other Programme Documents Agency Agreement and the ETP Securities Notes shall thereupon be deemed to be amended in such manner as shall be necessary to give effect to the substitutionsubstitution and without prejudice to the generality of the foregoing any references in this Trust Deed, the Agency Agreement or in the Notes to the Bank shall be deemed to be references to the Substituted Obligor.
(h) The Substituted Obligor and the Bank shall use all reasonable endeavours to ensure that the Notes continue to be listed on an Approved Stock Exchange and on KASE or, if the maintenance of such listings or any of them are agreed by the Trustee to be unduly onerous and the Trustee is satisfied that the interests of the Noteholders would not be thereby materially prejudiced, instead use its reasonable endeavours to obtain and maintain a listing of the Notes on another stock exchange or exchanges to be approved in writing by the Trustee and give notice of the identity of such other stock exchange or exchanges or securities market or markets to the Noteholders.
Appears in 1 contract
Sources: Trust Deed
Substitution. 15.2.1 The Trustee may, without the consent of the ETP SecurityholdersNoteholders, but subject agree with the Issuer to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution in place of the Issuer (or of any previous substitutesubstitute under this paragraph) as the principal debtor under the Security DocumentsNotes and this Trust Deed of (a) any Subsidiary of the Issuer or (b) (in the case of a Newco Scheme) of Newco or (c) a Surviving Entity as provided in Condition 6(m) (in each case, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "“Substituted Obligor"”), provided that:
(Ai) (other than in the case of a Surviving Entity) the Notes are unconditionally and irrevocably guaranteed by the Issuer in a form and manner satisfactory to the Trustee;
(ii) the Trustee is satisfied that the interests of the Noteholders will not be materially prejudiced by such substitution;
(iii) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents this Trust Deed and the ETP Securities of each Series Notes (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents this Trust Deed and the ETP Securities Notes as the principal debtor in place of the Issuer;
(Biv) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant “Substituted Territory”) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the Issuer is subject generally (the “Issuer’s Territory”), the Substituted Obligor will (unless the Trustee may require so that otherwise agrees) give to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 9 with the Issuer substitution for the obligations references in that Condition to the Issuer’s Territory of references to the Substituted ObligorTerritory whereupon the Trust Deed, the Notes and the Coupons will be read accordingly;
(Cv) if any director two directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(Dvi) the Trustee will LuxSE shall have confirmed to the Issuer that, after giving effect to such substitution, the Notes shall continue to be satisfied listed on the Official List and traded on the Euro MTF Market;
(if it requires, by reference vii) the Notes continue to legal opinions) that be convertible (a) all necessary governmental and regulatory approvals and consents necessary for in whole or in connection with the assumption by part) into Common Shares or, where the Substituted Obligor of liability as principal debtor in respect of, and of its obligations underis a Newco, the ETP Securities Conversion Rights are modified to provide for the conversion of each Series the Notes into common shares in such Newco mutatis mutandis as provided in the Conditions with such amendments as the Trustee shall consider appropriate or, where the Substituted Obligor is a Surviving Entity, the Notes will be convertible into the class and any Programme Document amount of shares and other securities and property receivable upon such consolidation, amalgamation, merger, sale or transfer by a holder of the number of Common Shares which would have been obtained become liable to be issued upon exercise of Conversion Rights immediately prior to such consolidation, amalgamation, merger, sale or transfer and (bthe other provisions of Condition 6(m) such approvals and consents are at the time of substitution in full force and effectshall be complied with;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(Gviii) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersNoteholders; and
(Hix) the Trustee may in the event of such substitution agree without the consent of the Noteholders to a legal change of law governing this Trust Deed and/or the Notes and/or the Paying, Transfer and Conversion Agency Agreement provided that such change would not in the opinion satisfactory of the Trustee be materially prejudicial to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice interests of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionNoteholders.
Appears in 1 contract
Sources: Trust Deed (Acergy S.A.)
Substitution. (a) The Trustee maymay agree with the Issuer and the Guarantors, but without the consent of the ETP SecurityholdersNoteholders or the Couponholders, but subject to the prior consent substitution of each Authorised Participant and the Margin Loan Provider, agree to Holding Company or of a Subsidiary of the substitution, Issuer or of a Successor in Business (such substituted company being hereinafter called the New Company) in place of the Issuer (or of any the previous substitutesubstitute under this clause) as the principal debtor under the Security Documents, the other Programme Documents to which it is these presents provided that a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor to the Trustee, New Company in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities provisions of each Series (these presents with such any consequential amendments as which the Trustee may deem appropriate) appropriate as fully as if the Substituted Obligor New Company had been named in the Security Documents and the ETP Securities these presents as the principal debtor in place of the Issuer;
Issuer (Bor of the previous substitute under the clause) and provided further that the Substituted Obligor assumes Guarantors unconditionally and irrevocably guarantee all rights, obligations and liabilities in relation amounts payable under these presents to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations satisfaction of the Substituted Obligor;Trustee.
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;The following further conditions shall apply to 21.1(a) above:
(Ei) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer Guarantors and the Substituted Obligor New Company shall comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersNoteholders;
(ii) without prejudice to the rights of reliance of the Trustee under the immediately following paragraph (iii), the Trustee is satisfied that the relevant transaction is not materially prejudicial to the interests of the Noteholders; and
(Hiii) a legal opinion satisfactory if two Directors of the New Company or one Director and the Company Secretary (or other officers acceptable to the Trustee Trustee) shall certify that the New Company is provided concerning any solvent both at the time at which the relevant transaction is proposed substitution. An agreement by to be effected and immediately thereafter (which certificate the Trustee pursuant may rely upon absolutely) the Trustee shall not be under any duty to have regard to the financial condition, profits or prospects of the New Company or to compare the same with those of the Issuer or the previous substitute under this Condition 14.3 and the Security Documents willclause as applicable.
21.2 Any such trust deed or undertaking shall, if so expressed, operate to release the Issuer (or a the previous substitute) substitute as aforesaid from any or all of its obligations as principal debtor under the Security Documents, the ETP Securities and the other relevant Programme Documentsthese presents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within Not later than 14 calendar days of after the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor New Company shall give notice thereof in a form previously approved by the Trustee to the Noteholders in the manner provided in Condition 13. Upon the execution of such documents and compliance with such requirements, the New Company shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents as the principal debtor in place of the Issuer (or in place of any the previous substitutesubstitute under this clause) under these presents and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents shall be deemed to be amended modified in such manner as shall be necessary to give effect to the substitutionabove provisions and, without limitation, references in these presents to the Issuer shall, unless the context otherwise requires, be deemed to be or include references to the New Company.
Appears in 1 contract
Substitution. (1) The Trustee may, may without the consent of the ETP SecurityholdersNoteholders, but subject Receiptholders or Couponholders at any time agree with the Issuer, PT and PTC to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution in place of the Issuer (or of any the previous substitutesubstitute under this Clause) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities these presents of each Series, of either Keep Well Provider or any other company Subsidiary of PT (incorporated in any jurisdiction) (any such substitute substituted company being hereinafter called the "Substituted ObligorNew Company"), ) provided that:
(A) that a trust deed is executed or some other form of undertaking is given by the Substituted Obligor to the Trustee, New Company in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities provisions of each Series (these presents with such any consequential amendments as which the Trustee may deem appropriate) appropriate as fully as if the Substituted Obligor New Company had been named in the Security Documents and the ETP Securities these presents as the principal debtor in place of the Issuer;Issuer (or of the previous substitute under this Clause) and provided further that if the New Company is not PT or PTC, PT and PTC each undertake like obligations in respect of such New Company to those set out in the relevant Keep Well Agreement or, if applicable, such other obligations in respect of the Issuer (or of the previous substitute under this Clause) which may be in force immediately prior to the substitution in place of PT's and PTC's respective obligations under the Keep Well Agreements to the satisfaction of the Trustee.
(B2) the Substituted Obligor assumes all rights, obligations and liabilities in relation The following further conditions shall apply to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;(1) above:
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(Ei) the Issuer and the Substituted Obligor will execute and the Issuer New Company shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersNoteholders;
(ii) where the New Company is incorporated, domiciled or resident in, or subject generally to the taxing jurisdiction of, a territory other than or in addition to The Netherlands or any political sub-division thereof or any authority therein or thereof having power to tax, undertakings or covenants shall be given by the New Company in terms corresponding to the provisions of Condition 8 with the substitution for (or, as the case may be, the addition to) the references to The Netherlands of references to that other or additional territory in which the New Company is incorporated, domiciled or resident or to whose taxing jurisdiction it is subject and (where applicable) Condition 7(b) shall be modified accordingly;
(iii) without prejudice to the rights of reliance of the Trustee under the immediately following paragraph (iv), the Trustee is satisfied that the relevant transaction is not materially prejudicial to the interests of the Noteholders; and
(Hiv) a legal opinion satisfactory if two Directors of the New Company (or other officers acceptable to the Trustee Trustee) shall certify that the New Company is provided concerning any solvent at the time at which the relevant transaction is proposed substitution. An agreement by to be effected (which certificate the Trustee pursuant may rely upon absolutely) the Trustee shall not be under any duty to have regard to the financial condition, profits or prospects of the New Company or to compare the same with those of the Issuer or the previous substitute under this Condition 14.3 and the Security Documents willClause as applicable.
(B) Any such Trust Deed or undertaking shall, if so expressed, operate to release the Issuer (or a the previous substitute) substitute as aforesaid from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documentsthese presents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within Not later than 14 calendar days of after the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor New Company shall give notice thereof in a form previously approved by the Trustee to the Noteholders in the manner provided in Condition 14. Upon the execution of such documents and compliance with such requirements, the New Company shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents as the principal debtor in place of the Issuer (or in place of any the previous substitutesubstitute under this Clause) under these presents and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents shall be deemed to be amended in such manner as shall be necessary to give effect to the substitutionabove provisions and, without limitation, references in these presents to the Issuer shall, unless the context otherwise requires, be deemed to be or include references to the New Company.
Appears in 1 contract
Sources: Fourth Supplemental Trust Deed (Portugal Telecom SGPS Sa)
Substitution. (A) The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant Issuer and the Margin Loan Provider, agree to Guarantor may at any time require the substitution, substitution in place of the Issuer (or of any previous substitutesubstitute under this Clause) or the Guarantor (or of any previous substitute under this Clause) as the principal debtor or, as the case may be, guarantor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Notes, the Receipts and the ETP Securities Coupons of each Series, the Issuer or its Successor in Business or any Subsidiary of the Issuer or its Successor in Business or the Guarantor or its Successor in Business or any other company (incorporated Subsidiary of the Guarantor or its Successor in any jurisdiction) Business (any such substitute company being hereinafter called the "Substituted Obligor"), New Company) provided that:
(Ai) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor to the TrusteeNew Company, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents provisions of this Trust Deed, the Notes, the Receipts and the ETP Securities of each Series (Coupons with such any consequential amendments as which the Trustee may deem appropriate) appropriate as fully as if the Substituted Obligor New Company had been named in this Trust Deed, the Security Documents Notes, the Receipts and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities Coupons as the principal debtor in place of the Issuer (or of any previous substitutesubstitute under this Clause) or, as the case may be, as guarantor in place of the Guarantor (or of any previous substitute under this Clause);
(ii) (except where the Guarantor or its Successor in Business is replacing the Issuer as principal debtor) the Guarantor or its Successor in Business unconditionally and these Conditionsirrevocably guarantees to the satisfaction of the Trustee all amounts payable by the New Company under this Trust Deed, the Security DocumentsNotes, the other Programme Documents Receipts and the ETP Securities Coupons;
(iii) the Trustee shall have received legal opinions in form and content satisfactory to it from independent legal advisers approved by it to the effect, inter alia, that (a) the New Company has obtained all governmental and regulatory approvals and consents necessary for its assumption of the obligations and liabilities as principal debtor or, as the case may be, as guarantor under this Trust Deed, the Notes, the Receipts and the Coupons, the holders of the Notes, Receipts, Coupons and Talons have rights against the New Company at least equivalent to the rights they have immediately prior to the substitution, such assumption is fully effective and such obligations and liabilities are legally valid and binding on, and enforceable against, the New Company; (b) except where the Guarantor or its successor in business is becoming the principal debtor, the Guarantor has obtained all governmental and regulatory approvals and consents necessary for the guarantee referred to in (ii) above to be fully effective and such guarantee is legally valid and binding on, and enforceable against, the Guarantor and (c) such approvals and consents are in full force and effect at the time of substitution;
(iv) Standard & Poor’s Agency, a Division of the ▇▇▇▇▇▇-▇▇▇▇ Companies and ▇▇▇▇▇’▇ Investors Service and any other rating agency which, at the request of the Issuer and the Guarantor, shall have assigned a credit rating to the Notes shall have confirmed in writing to the Trustee that the substitution by itself and the circumstances pertaining to the substitution will not result in a downgrading of the then current credit rating of such rating agency assigned to the Notes;
(v) where the New Company is incorporated, domiciled or resident in, or subject generally to the taxing jurisdiction of, a territory other than or in addition to the United Kingdom or any political sub-division or any authority therein or thereof having power to tax, undertakings or covenants shall be given to the Trustee by the New Company in terms corresponding to the provisions of Condition 8 with the substitution for (or, as the case may be, the addition to) the references to the United Kingdom of references to that other or additional territory in which the New Company is incorporated, domiciled or resident or to whose taxing jurisdiction it is subject this Trust Deed, the Notes, the Receipts and the Coupons shall be read and construed accordingly;
(vi) Condition 6(c) shall only apply if the change in, or amendment to, the laws of the jurisdiction of the New Company or any political sub-division or any authority thereof or therein having power to tax, or the change in the application or official interpretation of such laws or regulations referred to in such Condition becomes effective after the date of the substitution and, at the date of the substitution, no such change or amendment has been proposed; and
(vii) two Directors of the New Company (or other officers acceptable to the Trustee) shall have certified to the Trustee that the New Company is solvent at the time at which the substitution is proposed to be effected.
(B) Any such trust deed or undertaking shall, if so expressed, operate to release the Issuer or the previous substitute as aforesaid or, as the case may be, the Guarantor or the previous substitute as aforesaid from all of its obligations as principal debtor or, as the case may be, guarantor under this Trust Deed, the Notes, the Receipts and the Coupons. As soon as reasonably practicable but in any event not later than 21 days after the execution of such documents and compliance with such requirements, the New Company shall give notice thereof in a form previously approved by the Trustee to the Noteholders in the manner provided in Condition 16. Upon the execution of such documents and compliance with such requirements, the New Company shall be deemed to be amended named in this Trust Deed, the Notes, the Receipts and the Coupons as the principal debtor in place of the Issuer (or in place of the previous substitute under this Clause) or, as the case may be, as guarantor in place of the Guarantor (or in place of the previous substitute under this Clause) under this Trust Deed, the Notes, the Receipts and the Coupons and this Trust Deed, the Notes, the Receipts and the Coupons shall be deemed to be modified in such manner as shall be necessary to give effect to the substitutionabove provisions and, without limitation, references in this Trust Deed, the Notes, the Receipts and the Coupons to the Issuer or, as the case may be, the Guarantor shall, unless the context otherwise requires, be deemed to be or include references to the New Company. Back to Contents
19.1 Method Each communication under this Trust Deed shall be made by fax or otherwise in writing. Each communication or document to be delivered to any party under this Trust Deed shall be sent to that party at the fax number or address, and marked for the attention of the person (if any), from time to time designated by that party to each other party for the purpose of this Trust Deed. The initial telephone number, fax number, address and person so designated by the parties under this Trust Deed are set out in the Procedures Memorandum.
Appears in 1 contract
Sources: Trust Deed (Intercontinental Hotels Group PLC /New/)
Substitution. (a) 14.2.1 The Trustee may, without the consent of the ETP SecurityholdersNoteholders or Couponholders, (including, but subject to the prior consent of each Authorised Participant and the Margin Loan Providernot limited to, in circumstances which would constitute a Permitted Reorganisation) agree to the substitutionsubstitution of the Issuer'sIssuer’s successor in business, transferee or assignee or any subsidiary of the Issuer or its successor in business, transferee or assignee or of the Guarantor or its successor in business, transferee or assignee or any subsidiary of the Guarantor or its successor in business, transferee or assignee (the "(the “Substituted Obligor"”) in place of the Issuer or Guarantor (or of any previous substitutesubstitute under this sub-clause) as the principal debtor or guarantor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Notes, the Receipts, the Coupons and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Talons provided that:
(Ai) (a) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by this Trust Deed, the Security Documents Notes, the Receipts, the Coupons and the ETP Securities of each Series Talons (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Notes, the Certificates, the Receipts, the Coupons and the ETP Securities Talons as the principal debtor in place of the Issuer;
(Bii) (b) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant "“Substituted Territory"”) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the Issuer is subject generally (the "Issuer's“Issuer’s Territory"”), the Substituted Obligor shall (unless the Trustee may require so that otherwise agrees) give to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 88 with the Issuer substitution for the obligations references in that Condition to the Issuer'sIssuer’s Territory of references to the Substituted ObligorTerritory whereupon the Trust Deed, the Notes, the Certificates, the Receipts, the Coupons and the Talons shall be read accordingly;
(Ciii) (c) if any director 2 directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted ObligorObligor'sObligor’s financial condition, profits or prospects or compare them with those of the IssuerIssuer or the Guarantor;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 1 contract
Sources: Trust Deed
Substitution. The Trustee mayEach Bank (an "Existing Bank") may transfer, without by way of novation (but not by way of assignment or otherwise), all or any part of its rights, benefits and/or obligations under this Agreement to another Qualifying Bank (a "Substitute") in minimum amounts of $7,500,000, with the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that writing (a) all necessary governmental and regulatory approvals and consents necessary for of the Parent, such consent not to be unreasonably withheld or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained delayed and (b) of the Swingline Bank and the Overdraft Bank, such approvals consent not to be unreasonably withheld or delayed. Any such novation shall be effected upon not less than 5 Banking Days' prior notice by delivery to the Agent of a duly completed Substitution Certificate duly executed by the Existing Bank and consents the Substitute. On the Transfer Date (as specified and defined in a Substitution Certificate so executed and delivered), to the extent that the Commitment and Contribution of the Existing Bank are at expressed in a Substitution Certificate to be the time subject of substitution the novation in full force favour of the Substitute effected pursuant to this clause 18.3, by virtue of the counter-signature of the Substitution Certificate by the Agent (for itself, the Borrowers, the Guarantors, the Arrangers, the Banks, the Swingline Bank, the Agent and effectthe Security Trustee and the other parties to this Agreement):
(a) the existing parties to this Agreement and the Existing Bank shall be released from their respective obligations towards one another under this Agreement ("discharged obligations") and their respective rights against one another under this Agreement ("discharged rights") shall be cancelled;
(Eb) the Issuer Substitute party to the relevant Substitution Certificate and the Substituted Obligor will execute existing parties to this Agreement and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Security Trust Deed and/or (other than such Existing Bank) shall assume obligations towards each other which differ from the Security Documents, provided that discharged obligations only insofar as they are owed to or assumed by such change Substitute instead of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of or by such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersExisting Bank; and
(Hc) a legal opinion satisfactory the Substitute party to the Trustee is provided concerning any proposed substitution. An agreement by relevant Substitution Certificate and the Trustee pursuant existing parties to this Condition 14.3 Agreement and the Security Documents willTrust Deed (other than such Existing Bank) shall acquire rights against each other which differ from the discharged rights only insofar as they are exercisable by or against such Substitute instead of by or against such Existing Bank, if so expressedand, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documentson such Transfer Date, the ETP Securities Substitute shall pay to the Agent a fee of L1,500, as to L1,000 for the account of the Agent and as to L500 for the account of the Parent. The Agent shall promptly notify the other Banks and the other relevant Programme DocumentsParent of the receipt by it of any Substitution Certificate and shall promptly deliver a copy of such Substitution Certificate to the Parent. The Substituted Obligor shall give notice portions of any such transfer fees which are for the account of the substitution Parent shall be paid by the Agent to the ETP Securityholders within 14 calendar days Parent in arrears at three monthly intervals commencing three months after the date of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionAgreement.
Appears in 1 contract
Sources: Loan Agreement (Cordiant Communications Group PLC /Adr)
Substitution. The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given If so requested by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Bond Trustee mayshall, if it is satisfied based on advice from its legal advisors that to do so would not be materially prejudicial to the Covered Bondholders, without the consent of the holders of the ETP SecuritiesCovered Bonds of any Series or Coupons relating thereto, or any other Secured Creditor, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) with the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory Guarantor to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release substitution in place of the Issuer (or of the previous substitute under this Section 21.3) as the principal debtor hereunder and all other Transaction Documents of any Subsidiary of the Issuer (such substituted issuer being hereinafter called the New Company), provided that:
(a) in each case a previous substitute) from any or all trust deed is executed and other forms of its obligations under undertaking are given by the Security DocumentsNew Company in the form and manner satisfactory to the Bond Trustee, agreeing to be bound by the ETP Securities provisions hereof and the other relevant Programme Documents. The Substituted Obligor shall give notice Transaction Documents and all of the substitution to the ETP Securityholders within 14 calendar days outstanding Covered Bonds of all Series, in place of the execution of such documents Issuer, and compliance with such requirements. On completion of any consequential amendments which the formalities set out in this Condition 14.3 Bond Trustee may deem appropriate as fully as if the New Company had been named herein and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Transaction Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any the previous substitutesubstitute under this Section 21.3)
(b) the Issuer and the Guarantor will each deliver to the Bond Trustee a certificate signed by two Authorized Signatories of the Issuer and, in the case of the Guarantor, the Managing GP stating that immediately after giving effect to such transaction no Issuer Event of Default or Potential Issuer Event of Default (in respect of the Issuer) and these Conditionsno Guarantor Event of Default or Potential Guarantor Event of Default (in respect of the Guarantor), respectively, has occurred and be continuing;
(c) the Rating Agency Condition is satisfied with respect thereto;
(d) the Issuer shall execute and deliver to the Bond Trustee (in such form reasonably acceptable to the Bond Trustee) an undertaking to guarantee the obligations of the New Company in respect of the Covered Bonds, this Trust Deed and the Australian Deed Poll;
(e) where the New Company is domiciled or resident in, or subject generally to the taxing jurisdiction of, a territory other than or in addition to Canada or any province or territory thereof or any authority therein or thereof having power to tax, undertakings or covenants will be given by the New Company in terms corresponding to the provisions of Condition 7 (Taxation) with the substitution for (or, as the case may be, the Security Documentsaddition to) the references to Canada or any province or territory thereof or any authority therein or thereof having power to tax of references to that other or additional territory in which the New Company is incorporated, the other Programme Documents and the ETP Securities shall domiciled or resident or to whose taxing jurisdiction it is subject and, where such undertaking or covenant is provided, references in Condition 6.2 (Redemption for taxation reasons) to Canada or any province or territory thereof or any authority therein or thereof having power to tax will be deemed to be amended as necessary to give effect accordingly;
(f) the Covered Bond Guarantee remaining in place mutatis mutandis in relation to the substitutionobligations of the New Company; and
(g) the Issuer and the Guarantor will deliver to the Bond Trustee legal opinions obtained from lawyers approved by the Bond Trustee in (i) Canada, and (ii) the jurisdiction of incorporation of the New Company if not in Canada, in each case in form and substance satisfactory to the Bond Trustee. Any such substitution shall be notified by the Issuer to the Covered Bondholders in accordance with Condition 13 (Notices) and the other Secured Creditors as soon as practicable thereafter).
Appears in 1 contract
Sources: Trust Deed (Scotiabank Covered Bond Guarantor Limited Partnership)
Substitution. Prior to the Substitution, the Issuer shall not consolidate with or merge with or into (whether or not the Issuer is the surviving corporation), or convey, transfer or lease all or substantially all of its assets in one or more related transactions to, any Person, unless pursuant to a Substitution (as defined below). The Trustee mayshall, at Zhaikmunai LLP‟s written instruction, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution of Zhaikmunai LLP or its successor in place of business (the Issuer (or of any previous substitute“Substituted Obligor”) as the principal debtor Issuer under the Security Documents, the other Programme Documents to which it is a party this Indenture and the ETP Securities of each Series, of any other company Notes (incorporated in any jurisdictionthe “Substitution”) (any such substitute company being the "Substituted Obligor"), provided that:
(A1) a deed is executed or undertaking given by the Substituted Obligor will expressly assume, by supplemental indenture, executed and delivered to the Trustee, in form and manner reasonably satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted ObligorIssuer under the Notes and this Indenture;
(C2) if any director the General Director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not Substitution;
(3) each Guarantor (other than the Substituted Obligor) shall have regard by supplemental indenture confirmed that its Notes Guarantee shall apply to the Substituted Obligor’s financial condition, profits or prospects or compare them with those Obligor‟s obligations in respect of this Indenture and the IssuerNotes;
(D4) the Issuer and the Substituted Obligor shall have delivered to the Trustee satisfactory evidence that the Proceeds Loan shall be assigned or novated to the Substituted Obligor immediately after giving effect to such Substitution;
(5) the Substituted Obligor shall have delivered an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, to the effect that the Securityholders will not recognize income, gain or loss for United States federal, Kazakh or Dutch income tax purposes as a result of such transaction and will be satisfied subject to United States federal, Kazakh and Dutch (or the jurisdiction of organization of any successor company) income tax on the same amounts, in the same manner and at the same times as would have been the case if it requiressuch transaction had not occurred;
(6) the Substituted Obligor shall have delivered to the Trustee an Officer‟s Certificate and an Opinion of Counsel, by reference to legal opinions) each stating that (ai) the Substituted Obligor has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with the its assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor Notes in place of the Issuer Issuer; (or of any previous substituteii) the Parent has obtained all governmental and these Conditions, regulatory approvals and consents necessary for the Security Documents, the other Programme Documents and the ETP Securities shall be deemed Notes Guarantee to be amended fully effective as necessary to give effect to the substitution.described in Clause (3) above; and
Appears in 1 contract
Sources: Indenture
Substitution. The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderBondholders, agree to the substitution, substitution in place of the Issuer (or of any previous substitutesubstitute or substitutes under this Condition) as the principal debtor under the Security DocumentsBonds and the Trust Deed of any member of the Guarantor’s Group (such member of the Guarantor’s Group substituted in place of the Issuer, the other Programme Documents “Substituted Debtor”) upon not less than 30 nor more than 60 days’ prior written notice to which it is a party the Bondholders and the ETP Securities of each Series, of any other company (incorporated Trustee in any jurisdiction) (any such substitute company being the "Substituted Obligor")accordance with Condition 19, provided that:
(Ai) a deed is executed or undertaking given by the Issuer uses commercially reasonable efforts to select as the Substituted Obligor to Debtor an entity incorporated in a Permitted Jurisdiction;
(ii) the TrusteeSubstituted Debtor expressly assumes the due and punctual payment of the principal of, and interest on, and all other amounts payable in form and manner satisfactory to respect of all of the Trustee, agreeing to be bound by the Security Documents Bonds and the ETP Securities due and punctual performance of each Series all of the Issuer's other obligations under the Trust Deed, the Bonds (with such consequential amendments as including in respect of the Trustee may deem appropriateexercise of Exchange Rights), the Agency Agreement and the Calculation Agency Agreement;
(iii) as if the Substituted Obligor had been named in Debtor is organised and existing other than under the Security Documents and the ETP Securities as the principal debtor in place laws of the IssuerUnited Kingdom, the Substituted Debtor has irrevocably and unconditionally (A) consented and submitted to the jurisdiction of any courts of England, in respect of any legal action, suit or proceeding against it arising out of, or in connection with, the Trust Deed or the Bonds, (B) waived, to the fullest extent permitted by law, any objection to the laying of venue in any such court or that any such legal action, suit or proceeding has been brought in an inconvenient forum and (C) appointed an agent in England for service of process in any such legal action, suit or proceeding;
(Biv) the Bonds continue to be exchangeable for the Exchange Property as provided in these Conditions mutatis mutandis as provided in these Conditions, provided that in any such case, any such substitution does not result in a Triggering Event, an Event of Default or a Potential Event of Default;
(v) if the Substituted Obligor assumes all rightsDebtor is other than the Guarantor, obligations the Guarantee is and liabilities remains fully effective in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted ObligorDebtor in respect of the Bonds and the Trust Deed or an equivalent guarantee is entered into by the Guarantor that has been duly authorised by it and is valid, binding and enforceable against it with respect to the obligations of the Issuer under the Bonds and the Trust Deed;
(Cvi) if any director of the Substituted Obligor certifies that it will be solvent immediately after giving effect to such substitution, the Trustee need not no Event of Default, and no Potential Event of Default, shall have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;occurred and be continuing; and
(Dvii) the Trustee will be satisfied (if it requiresshall have received from the Issuer an Officer’s Certificate and a written opinion of counsel to the effect that all conditions precedent to such substitution have been satisfied, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or certain other conditions set out in connection with the assumption Trust Deed are complied with, including the execution by the Substituted Obligor Debtor of liability as principal debtor in respect of, a deed supplemental to the Trust Deed and of its obligations under, agreements supplemental to the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer Agency Agreement and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and Calculation Agency Agreement. Upon any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution replacement of the Issuer, as principal debtor, by any Substituted Debtor, in accordance with the provisions of this Condition 16(c), the Substituted Debtor shall succeed to, and be substituted for, the Issuer with respect to the Bonds and the Trust Deed, and may exercise every right and power of the Issuer under the Trust Deed and the Bonds with the same effect as if the Substituted Debtor had been named as the Issuer in the Trust Deed and the Bonds, and thereafter, the predecessor person shall be released from all obligations and covenants under the Bonds and the Trust Deed. In the case of such a substitution the Trustee maymay agree, without the consent of the holders of the ETP SecuritiesBondholders, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Bonds, the Trust Deed and/or the Security Documents, Guarantee Agreement provided that such change of law, would not in the opinion of the Trustee, would not Trustee be materially prejudicial to the interests of the Bondholders. Any such ETP Securityholders;
(G) substitution shall be binding on the Issuer Bondholders and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory shall be notified promptly to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Bondholders in accordance with Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution19.
Appears in 1 contract
Substitution. The Trustee may, without the consent of the ETP SecurityholdersNoteholders, but subject agree with the Issuer to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, substitution in place of the Issuer (or of any previous substituteSubstituted Issuer (as defined below) as the principal debtor under in respect of the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, Notes of any other company body corporate (incorporated in any jurisdiction) (any such substitute company being the "Substituted ObligorIssuer"), ) provided that:
(A) 20.1.1 a trust deed or an indenture is executed or some other form of undertaking is given by the Substituted Obligor Issuer to the Trustee, Trustee in form and manner satisfactory to the Trustee, agreeing Trustee to be bound by the Security Documents terms of this Deed and by the ETP Securities of each Series Conditions (with such any consequential amendments as which the Trustee may reasonably consider or deem to be appropriate) as fully as if the Substituted Obligor Issuer had been a party to this Deed and named herein and in the Security Documents and the ETP Securities Notes as the principal debtor in respect of the Notes in place of the Issuer;
(B) 20.1.2 the Substituted Obligor assumes all rights, obligations and liabilities in relation Issuer becomes a party to the Secured Property, acknowledges the Security created in respect thereof pursuant relevant Series Documents or to equivalent documents acceptable to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted ObligorTrustee;
(C) 20.1.3 if any a director of the Substituted Obligor Issuer certifies that it the Substituted Issuer will be solvent immediately after such substitutionthe time at which the said substitution is to be effected, the Trustee need shall not have regard to the Substituted Obligor’s financial condition, profits or prospects of the Substituted Issuer or compare them the same with those of the IssuerIssuer (or any other Substituted Issuer substituted under this Clause);
(D) 20.1.4 the Trustee is satisfied that the relevant transaction is not materially prejudicial to the interest of the Noteholders;
20.1.5 confirmation is received from the rating agencies appointed in relation to any Related Beneficiary Debt issued in respect of such Series that the ratings assigned to such Related Beneficiary Debt will not be withdrawn or reduced as a result of the substitution;
20.1.6 the Trustee shall be satisfied (if by means of legal opinions in form and substance satisfactory to it requires, by reference to legal opinionsor otherwise) that (ai) all necessary governmental and regulatory approvals and consents necessary for for, or in connection with with, the assumption by the Substituted Obligor Issuer of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained this Deed and (bii) such approvals and consents are at the time of substitution in full force and effect;; and
(E) 20.1.7 the Issuer or, as the case may be, the previous Substituted Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) and make such representations and warranties and provide such other documentation (particularly, but not limited to, with regard to any applicable bankruptcy law) as the Trustee may require in order to be satisfied that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders Noteholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 1 contract
Sources: Security Trust Deed and MTN Cash Management Agreement (Gracechurch Receivables Trustee LTD)
Substitution. The Trustee mayEach Bank may transfer, without by way of novation, all or any part of its rights, benefits and/or obligations under this Agreement to another person subject to a minimum transfer amount of five million Dollars ($5,000,000) to be transferred (a "Substitute") and provided that no Default has occurred and is continuing the consent of the ETP Securityholders, but subject Borrower (which consent shall not be unreasonably withheld or delayed). Any such novation shall be effected upon five (5) Banking Days' prior notice by delivery to the prior consent Agent of each Authorised Participant a duly completed Substitution Certificate duly executed by such Bank, the Substitute and the Margin Loan ProviderAgent (for itself, agree the Borrower and the other Banks) and following receipt by the transferring Bank from the Substitute of an amount equal to the substitutionpurchase price to be paid by the Substitute for the Contribution being transferred. On the effective date specified in a Substitution Certificate so executed and delivered, to the extent that they are expressed in place such Substitution Certificate to be the subject of the Issuer (or of any previous substitute) as novation effected pursuant to this clause 15.4:
15.4.1 the principal debtor under the Security Documents, the other Programme Documents existing parties to which it is a party this Agreement and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor Bank party to the Trustee, in form relevant Substitution Certificate shall be released from their respective obligations towards one another under this Agreement ("discharged obligations") and manner satisfactory their respective rights against one another under this Agreement ("discharged rights") shall be cancelled;
15.4.2 the Substitute party to the Trustee, agreeing to be bound by the Security Documents relevant Substitution Certificate and the ETP Securities existing parties to this Agreement (other than the Bank party to such Substitution Certificate) shall assume obligations towards each other which differ from the discharged obligations only insofar as they are owed to or assumed by such Substitute instead of each Series (with to or by such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersBank; and
(H) a legal opinion satisfactory 15.4.3 the Substitute party to the Trustee is provided concerning any proposed substitution. An agreement by relevant Substitution Certificate and the Trustee pursuant existing parties to this Condition 14.3 and Agreement (other than the Security Documents willBank party to such Substitution Certificate) shall acquire rights against each other which differ from the discharged rights only insofar as they are exercisable by or against such Substitute instead of by or against such Bank and, if so expressed, release on the Issuer (or a previous substitute) from any or all of its obligations under the Security Documentsdate upon which such novation takes effect, the ETP Securities and Substitute shall pay to the Agent for its own account a transfer fee of three thousand Dollars ($3,000). The Agent shall promptly notify the other relevant Programme Documents. The Substituted Obligor shall give notice parties hereto of the substitution receipt by it of any Substitution Certificate and shall promptly deliver a copy of such Substitution Certificate to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionBorrower.
Appears in 1 contract
Substitution. 14.2.1 The Bond Trustee may, without the consent of the ETP SecurityholdersBondholders, Receiptholders or Couponholders, but subject to the prior consent terms of each Authorised Participant and the Margin Loan ProviderSTID, agree to the substitution, substitution of the Issuer’s successor in business or of the Guarantor or its successor in business (the “Substituted Obligor”) in place of the Issuer (or of any previous substitutesubstitute under this Clause 14.2) as the principal debtor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Bonds, the Receipts, the Coupons and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Bond Trustee, in form and manner satisfactory to the Bond Trustee, agreeing to be bound by this Trust Deed, the Security Documents Bonds, the Receipts, the Coupons and the ETP Securities of each Series Talons (with such consequential amendments as the Bond Trustee may deem appropriate) as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Bonds, the Certificates, the Receipts, the Coupons and the ETP Securities Talons as the principal debtor in place of the IssuerIssuer or as the guarantor in place of the Guarantor as the case may be;
(Bii) if the Substituted Obligor is subject generally to the taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the “Substituted Territory”) other than the territory to the taxing jurisdiction of which (or to any such authority of or in which) the Issuer is subject generally (the “Issuer’s Territory”), or to which the Guarantor is subject generally (the “Guarantor’s Territory”) the Substituted Obligor assumes all rights, obligations and liabilities in relation shall (unless the Bond Trustee otherwise agrees) give to the Secured Property, acknowledges the Security created in respect thereof pursuant Bond Trustee an undertaking satisfactory to the Security Documents and takes all such action Bond Trustee in terms corresponding to Condition 10 (Taxation) with the substitution for the references in that Condition to the Issuer’s Territory or the Guarantor’s Territory as the Trustee case may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations be of references to the Substituted ObligorTerritory whereupon the Trust Deed, the Bonds, the Certificates, the Receipts, the Coupons and the Talons shall be read accordingly;
(Ciii) if any director two directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Bond Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the IssuerIssuer or the Guarantor;
(Div) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer Guarantor and the Substituted Obligor comply with such other requirements as the Bond Trustee may direct in the interests of the ETP SecurityholdersBondholders including, but not limited to:
(a) the legal opinions specified by the Bond Trustee concerning the substitution (in a form satisfactory in the Bond Trustee) being provided to the Bond Trustee);
(b) certification by the Issuer to the Bond Trustee any listing will continue to be maintained after the substitution; and
(Hc) a legal opinion satisfactory notice is given to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice Bondholders of the substitution to by the ETP Securityholders within 14 calendar days Issuer in accordance with the Conditions
(v) (unless the Issuer’s successor in business or where relevant, the Guarantor or its successor in business is the Substituted Obligor) the obligations of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditionsunder this Trust Deed, the Security DocumentsBonds, the other Programme Documents Receipts, and the ETP Securities Coupons are guaranteed by the Guarantor in the same terms (with consequential amendments as necessary) as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect Guarantee to the substitutionBond Trustee’s satisfaction; and
(vi) an RAC or Ratings Notification is provided to the Bond Trustee.
Appears in 1 contract
Sources: Trust Deed
Substitution. The Trustee mayIssuer may be replaced and the Guarantor or any subsidiary of the Guarantor may be substituted for the Issuer as principal debtor in respect of the Notes and Coupons, without the consent of the ETP SecurityholdersNoteholders or Couponholders. If the Issuer shall determine that the Guarantor or any such subsidiary shall become the principal debtor (in such capacity, but subject the “Substituted Debtor”), the Issuer shall give not less than 30 nor more than 45 days’ notice, in accordance with Condition 14, to the prior consent Noteholders of each Authorised Participant such event and, immediately on the expiry of such notice, the Substituted Debtor shall become the principal debtor in respect of the Notes and the Margin Loan Provider, agree to the substitution, Coupons in place of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents Noteholders and the ETP Securities of each Series Couponholders shall thereupon cease to have any rights or claims whatsoever against the Issuer. However, no such substitution shall take effect (with such consequential amendments as the Trustee may deem appropriatei) as if the Substituted Obligor had been named Debtor is not the Guarantor, until the Guarantor shall have entered into an irrevocable guarantee substantially in the Security Documents and the ETP Securities as the principal debtor in place form of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created Guarantee in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for of the obligations of such Substituted Debtor, (ii) in any case, until the Substituted Obligor;
Debtor shall have provided to the Agent or (Cin the case of Registered Notes) if the Registrar and the Transfer Agent, such documents as may be necessary to make the Notes and the Agency Agreement and (in the case of Registered Notes) the Note Agency Agreement) its legal, valid and binding obligations, (iii) until such Substituted Debtor shall have agreed to indemnify each Noteholder and Couponholder against (a) any director tax, duty, fee or governmental charge which is imposed on such holder by the jurisdiction of the country of its residence for tax purposes and, if different, of its incorporation or any political subdivision or taxing authority thereof or therein with respect to such Note or Coupon and which would not have been so imposed had such substitution not been made, (b) any tax, duty, fee or governmental charge imposed on or relating to the act of substitution and (c) any costs or expenses of the act of substitution and (iv) until such Substituted Obligor certifies that it will be solvent immediately after Debtor shall have been approved by the relevant authorities as able to issue the relevant Notes. Upon any such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee Notes and Coupons will be satisfied (if it requires, by reference to legal opinions) that (a) modified in all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionappropriate respects.
Appears in 1 contract
Sources: Debt Issuance Programme
Substitution. (a) The Trustee may, without the previous consent or sanction of the ETP Securityholdersholders of the Notes, but subject to the prior consent Coupons or Talons of each Authorised Participant and the Margin Loan Providerany Series, agree with the Issuer to the substitution, in place of the Issuer (or of any previous substitute) as the principal debtor under this Trust Deed in relation to the Security DocumentsNotes, the other Programme Documents to which it is a party Coupons and the ETP Securities Talons of each Seriesany Series and under such Notes, Coupons and Talons, of any other company Holding Company or of any subsidiary of the Issuer (incorporated in any jurisdictionhereinafter called the Substituted Issuer) (any such substitute company being the "Substituted Obligor"), provided thatPROVIDED THAT:
(Ai) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Issuer to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of this Trust Deed and the ETP Securities Notes, Coupons and Talons of each Series (the relevant Series, with such any consequential amendments as which the Trustee may deem appropriate) , as fully as if the Substituted Obligor Issuer had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Security Documents Issuer and had been named on the ETP Securities Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;
(Bii) the Trustee shall be satisfied that (x) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with its assumption of the assumption by the Substituted Obligor of liability obligations and liabilities as principal debtor under this Trust Deed in respect ofrelation to the Notes, Coupons and Talons of its obligations under, the ETP Securities of each relevant Series and any Programme Document have been obtained under such Notes, Coupons and Talons in place of the Issuer and (by) such approvals and consents are at the time of substitution in full force and effect;
(Eiii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Substituted Issuer at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct or require in the interests of the ETP Securityholdersholders of the Notes of the relevant Series;
(v) without prejudice to the generality of subparagraphs (i), (ii), (iii) and (iv) of this Clause 15.3(a), where the Substituted Issuer is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 6 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Substituted Issuer is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any authority of or in which, the Substituted Issuer is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) in the case of any Tier 2 Notes, the obligations of the Substituted Issuer in respect of such Tier 2 Notes, Coupons and Talons shall be subordinated on a basis equivalent to that referred to in Condition 2;
(vii) if the directors of the Substituted Issuer shall certify to the Trustee that it is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(Hviii) a legal opinion satisfactory without prejudice to the rights of reliance of the Trustee under paragraph (vii) of this Clause 15.3(a), the Trustee is provided concerning satisfied that the said substitution is not materially prejudicial to the interest of the holders of the Notes and Coupons of the relevant Series. Upon the execution of such documents and compliance with the said requirements:
(A) the Substituted Issuer shall be deemed to be named in this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and on such Notes, Coupons and Talons as principal debtor in place of the Issuer and this Trust Deed and the relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any proposed supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution. An ;
(B) the Issuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents willClause 15.3(a), if so expressed, release the Issuer (or a previous substitute) be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Security DocumentsNotes, Coupons and Talons of the ETP Securities relevant Series and such Notes, Coupons and Talons; and
(C) the other relevant Programme Documents. The Substituted Obligor shall Issuer shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the ETP Securityholders within 14 calendar days holders of the Notes of the relevant Series in accordance with Condition 12.
(b) The Trustee may, without the previous consent or sanction of the holders of the Notes, Coupons or Talons of any Series, agree with the Issuer to the substitution, in place of the Issuer as the principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of any Series and under such Notes, Coupons and Talons of a Successor in Business PROVIDED THAT:
(i) a trust deed is executed or some other form of undertaking is given by the Successor in Business to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the terms of this Trust Deed and the Notes, Coupons and Talons of the relevant Series, with any consequential amendments which the Trustee may deem appropriate, as fully as if the Successor in Business had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Issuer and had been named on the Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;
(ii) the Trustee shall be satisfied that (x) the Successor in Business has obtained all necessary governmental and regulatory approvals and consents necessary for its assumption of the obligations and liabilities as principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of the relevant Series and under such Notes, Coupons and Talons in place of the Issuer and (y) such approvals and consents are at the time of substitution in full force and effect;
(iii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Successor in Business at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Successor in Business comply with such other requirements as the Trustee may direct or require in the interests of the holders of the Notes of the relevant Series;
(v) without prejudice to the generality of paragraphs (i), (ii), (iii) and (iv) of this Clause 15.3(b), where the Successor in Business is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 6 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Successor in Business is incorporated, domiciled or resident or the taxing jurisdiction of which, or of any authority of or in which, the Successor in Business is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) if the directors of the Successor in Business shall certify to the Trustee that it is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(vii) without prejudice to the rights of reliance of the Trustee under paragraph (vi) of this Clause 15.3(b), the Trustee is satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes of the relevant Series. Upon the execution of such documents and compliance with such the said requirements. On completion of :
(A) the formalities set out Successor in this Condition 14.3 and the Security Documents, the Substituted Obligor Business shall be deemed to be named in these Conditionsthis Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the Security Documentsrelevant Series and on such Notes, the other Programme Documents Coupons and the ETP Securities Talons as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents this Trust Deed and the ETP Securities relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution;
(B) the substitutionIssuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Clause 15.3(b), be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and such Notes, Coupons and Talons; and
(C) the Issuer or the Successor in Business shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the holders of the Notes of the relevant Series in accordance with Condition 12.
Appears in 1 contract
Sources: Supplemental Trust Deed
Substitution. (a) The Trustee may, without the consent of the ETP SecurityholdersNoteholders or Couponholders, (including, but subject to the prior consent of each Authorised Participant and the Margin Loan Providernot limited to, in circumstances which would constitute a Permitted Reorganisation) agree to the substitutionsubstitution of the relevant Issuer’s successor in business, transferee or assignee or any subsidiary of the relevant Issuer or its successor in business, transferee or assignee or of the relevant Guarantors) or its successor in business, transferee or assignee or any subsidiary of the relevant Guarantor(s) or its successor in business, transferee or assignee (the “Substituted Obligor”) in place of the relevant Issuer or Guarantor (or of any previous substitutesubstitute under this sub-Clause) as the principal debtor or guarantor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Notes, the Receipts, the Coupons and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Talons provided that:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by this Trust Deed, the Security Documents Notes, the Receipts, the Coupons and the ETP Securities of each Series Talons (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Notes, the Certificates, the Receipts, the Coupons and the ETP Securities Talons as the principal debtor in place of the relevant Issuer;
(Bii) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant “Substituted Territory”) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the relevant Issuer is subject generally (the “Issuer’s Territory”), the Substituted Obligor shall (unless the Trustee may require so that otherwise agrees) give to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 9 with the Issuer substitution for the obligations references in that Condition to the relevant Issuer’s Territory of references to the Substituted ObligorTerritory whereupon the Trust Deed, the Notes, the Certificates, the Receipts, the Coupons and the Talons shall be read accordingly;
(Ciii) if any director two directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuerrelevant Issuer or the relevant Guarantor(s);
(Div) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the relevant Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(Grelevant Guarantor(s) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; andNoteholders;
(Hv) a legal opinion (unless the relevant Issuer’s successor in business, transferee or assignee or where relevant, the relevant Guarantor(s) or its successor in business, transferee or assignee is the Substituted Obligor) the obligations of the Substituted Obligor under this Trust Deed, the Notes, the Receipts, and the Coupons are guaranteed by the relevant Guarantor(s) in the same terms (with consequential amendments as necessary) as the Guarantee to the Trustee’s satisfaction;
(vi) (unless all or substantially all of the assets of the relevant Issuer or any previous Substituted Obligor are transferred to the Substituted Obligor) an unconditional and irrevocable guarantee in form and substance satisfactory to the Trustee is provided concerning any proposed substitution. An agreement given by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the relevant Issuer (or a any previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice (as applicable) of the substitution to the ETP Securityholders within 14 calendar days obligations of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor under this Trust Deed shall be deemed to be named have been given;
(vii) the Trustee is satisfied that (A) the Substituted Obligor has obtained all governmental and regulatory approvals and consents necessary for its assumption of liability as principal debtor under these presents and in these Conditionsrespect of the Notes, the Security Documents, the other Programme Documents Receipts and the ETP Securities as the principal debtor Coupons in place of the relevant Issuer (or of any previous substituteSubstituted Obligor (as applicable) and these Conditions, (B) such approvals and consents are at the Security Documents, the other Programme Documents time of substitution in full force and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.effect; and
Appears in 1 contract
Sources: Trust Deed
Substitution. The Trustee may, without If and whenever the consent Company shall be required or ------------ permitted to subject any Property to the Lien of this Pledge Agreement pursuant to any provision of this Pledge Agreement or pursuant to the terms of the ETP SecurityholdersMaster Sub-License Agreement or the Indenture, but subject the Company will furnish to the prior consent of each Authorised Participant Collateral Agent the following:
(i) a Supplemental Pledge Agreement duly executed by the Company, appropriately describing, identifying and locating such Property and specifically subjecting the Margin Loan Provider, agree same to the substitutionLien of this Pledge Agreement; and
(ii) in the case of
(a) Ground Equipment, in place cash, Investment Securities or Property being subjected to the Lien of this Pledge Agreement, an Opinion of Counsel, dated the Issuer (or date of any previous substitute) as the principal debtor under the Security Documentsexecution of said Supplemental Pledge Agreement, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided stating that:
(A1) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that said Supplemental Pledge Agreement: (a) all necessary governmental has been duly authorized, executed and regulatory approvals and consents necessary for or in connection with the assumption delivered by the Substituted Obligor of liability as principal debtor in respect ofCompany, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals validly subjects to the Lien of this Pledge Agreement (subject only to Permitted Liens) under applicable Federal and consents are at State laws all the time right, title and interest of substitution the Company in full force and effectto the Property specifically described in said Supplemental Pledge Agreement;
(E2) said Supplemental Pledge Agreement (a) is not required to be filed or recorded in any place within the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require United States in order to perfect and preserve the Lien of this Pledge Agreement under Federal or state laws on the Property specifically described in said Supplemental Pledge Agreement; or (b) if any such filing or recording shall be required, that said filing or recording has been accomplished in such substitution manner and places, which shall be specified in such Opinion of Counsel, as is fully effective necessary in order so to perfect and comply preserve the Lien of this Pledge Agreement; and (c) in rendering such Opinion, such counsel may assume that there are no documents with respect to such other requirements Property that have been filed for recording under such recording system but have not yet been listed in the interests available records of the ETP Securityholders such system as the Trustee having been so filed and may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, state that no opinion is expressed as to liens that are perfected without the consent filing of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change notice thereof or by operation of law, such as federal tax liens and liens arising under Section 1368(a) of Title 29 of the United States Code, and that the examination of said counsel was limited to the records of such recording systems and subject to the accuracy of the personnel administering such system in the opinion filing, indexing and recording of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply instruments filed with such other requirements as the Trustee may direct in the interests of the ETP Securityholdersentity; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 1 contract
Substitution. 15.2.1 The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderNoteholders, agree to the substitutionsubstitution of the Issuer’s successor in business, transferee or assignee or any Subsidiary of the Issuer or its successor in business, transferee or assignee (the “Substituted Obligor”) in place of the Issuer (or of any previous substitutesubstitute under this sub-clause) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party this Trust Deed and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Subordinated Notes provided that:
(Ai) the Subordinated Notes are unconditionally and irrevocably guaranteed by the Issuer in a form and manner satisfactory to the Trustee;
(ii) the Trustee is satisfied that the interests of the Noteholders are not materially prejudiced by the substitution;
(iii) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents this Trust Deed and the ETP Securities of each Series Subordinated Notes (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents this Trust Deed and the ETP Securities Subordinated Notes as the principal debtor in place of the Issuer;
(Biv) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Propertytaxing jurisdiction of a territory or any authority of or in that territory with power to tax (the “Substituted Territory”) other than the Issuer’s, acknowledges the Security created in respect thereof pursuant Substituted Obligor will (unless the Trustee otherwise agrees) give to the Security Documents and takes all such action as Trustee an undertaking satisfactory to the Trustee may require so that in terms corresponding to Condition 9 (Taxation) with the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer substitution for the obligations references in that Condition to the Issuer’s Territory of references to the Substituted ObligorTerritory whereupon this Trust Deed and the Notes will be read accordingly;
(Cv) if any director two directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(Gvi) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; andNoteholders;
(Hvii) a legal opinion (unless all or substantially all of the assets of the Issuer or any previous Substituted Obligor are transferred to the Substituted Obligor) an unconditional and irrevocable guarantee in form and substance satisfactory to the Trustee is given by the Issuer or any previous Substituted Obligor (as applicable) of the obligations of the Substituted Obligor under this Trust Deed shall have been given;
(viii) the Trustee is satisfied that (i) the Substituted Obligor has obtained any governmental and regulatory approvals and consents necessary for its assumption of liability as principal debtor under these presents and in respect of the Subordinated Notes, the Receipts and the Coupons in place of the Issuer or any previous Substituted Obligor (as applicable) and (ii) such approvals and consents are at the time of substitution in full force and effect;
(ix) the Trustee is provided concerning any proposed substitution. An with such legal opinions as it may require in respect of such substitution in form and substance satisfactory to it;
(x) Release of Issuer and Substitute Obligor: Any such agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents Clause 15.2 will, if so expressed, operate to release the Issuer (or a any such previous substituteSubstituted Obligor) from any or all of its obligations under the Security Documents, the ETP Securities this Trust Deed and the other relevant Programme DocumentsSubordinated Notes. The Substituted Obligor shall give Not later than 14 days after the execution of any such documents and after compliance with such requirements, notice of the substitution will be given to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.Noteholders;
Appears in 1 contract
Sources: Trust Deed Amendment
Substitution. The Trustee may15.1 As provided in Condition 15 of the terms and conditions of the relevant Instruments, the Issuer may be replaced, and ABB Ltd or any direct or indirect subsidiary of ABB Ltd may be substituted for the Issuer, as principal debtor in respect of the Instruments without the consent of the ETP SecurityholdersHolders of the Instruments or Coupons. If the Issuer shall determine that ABB Ltd or any such subsidiary shall become the principal debtor (in such capacity, but subject the "SUBSTITUTED DEBTOR"), the Issuer shall give not less than 30 nor more than 45 days' notice, in accordance with Condition 14, to the prior consent Holders of each Authorised Participant the Instruments of such event and, immediately on the expiry of such notice, the Substituted Debtor shall enter into a Deed of Assumption, substantially in the form set out in the Sixth Schedule hereto, and become the Margin Loan Provider, agree to principal debtor in respect of the substitution, Instruments in place of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities Holders of each Seriesthe Instruments shall thereupon cease to have any rights or claims whatsoever against the Issuer. However, of any other company no such substitution shall take effect (incorporated in any jurisdictioni) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named Debtor is any other subsidiary of ABB Ltd, until such Substituted Debtor shall have entered into a keep-well agreement with ABB Ltd substantially in the Security Documents and the ETP Securities as the principal debtor in place form of the Issuer;
Keep-Well Agreement (Bas defined in the terms and conditions of the relevant Instruments), (ii) until such Substituted Debtor shall have executed a deed of covenant substantially in the form of the Deed of Covenant (as defined in the terms and conditions of the relevant Instruments), (iii) in any case, until the Substituted Debtor shall have provided to the Fiscal Agent and (if applicable) the Registrar such documents as may be necessary to make the Deed of Assumption, the relevant Instruments, the Fiscal Agency Agreement, such deed of covenant and any such keep-well agreement the legal, valid and binding obligations of, as appropriate, the Substituted Debtor and ABB Ltd together with legal opinions either unqualified or subject only to normal, usual or appropriate qualifications and assumptions to the effect that the Instruments, the Fiscal Agency Agreement, the Deed of Assumption, such deed of covenant and any such keep-well agreement are legal, valid and binding obligations of, as appropriate, the Substituted Debtor and ABB Ltd; (iv) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not Debtor shall have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) obtained all necessary governmental and regulatory approvals and consents necessary for consents, if any, in connection with the substitution and (v) the Substituted Debtor shall have appointed the process agent appointed by the Issuer in Condition 18.03 of the terms and conditions of the relevant Instruments as its agent in England to receive service of process on its behalf in relation to any legal action or proceedings arising out of or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations underrelevant Instruments. Upon any such substitution, the ETP Securities of each Series Instruments and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents Coupons will, if so expressednecessary, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named modified in these Conditions, the Security Documents, the other Programme Documents all appropriate respects.
15.2 The terms and the ETP Securities as the principal debtor in place conditions of the Issuer (or of relevant Instruments shall, following any previous substitute) and these Conditionssubstitution effected in accordance with this Section, apply to the Security DocumentsSubstituted Debtor, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect set out in the Schedule to the substitutionDeed of Assumption.
Appears in 1 contract
Sources: Fiscal Agency Agreement (Abb LTD)
Substitution. (a) The Note Trustee may, without the consent of the ETP SecurityholdersNoteholders, but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderReceiptholders or Couponholders, agree to the substitution, substitution of the Relevant Issuer's successor in business (the "Substituted Obligor") in place of the Relevant Issuer (or of any previous substitutesubstitute under this Subclause) as the principal debtor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Notes, the Receipts, the Coupons and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Talons provided that:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Note Trustee, in form and manner satisfactory to the Note Trustee, agreeing to be bound by this Trust Deed, the Security Documents Notes, the Receipts, the Coupons and the ETP Securities of each Series Talons (with such consequential amendments as the Note Trustee may deem appropriate, including any necessary change of the law governing the Notes, the Receipts, the Coupons, the Talons and/or the Trust Deed) as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Notes, the Certificates, the Receipts, the Coupons and the ETP Securities Talons as the principal debtor in place of the IssuerRelevant Issuer or any previous substitute under this Subclause;
(Bii) the Note Trustee is satisfied that (i) the Substituted Obligor assumes has obtained all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the its assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations underthe Notes, the ETP Securities Receipts and the Coupons in place of each Series and any Programme Document have been obtained the Relevant Issuer (or such previous substitute as aforesaid) and (bii) such approvals and consents are at the time of substitution in full force and effect;
(Eiii) the Issuer Note Trustee may request legal opinions in a form and manner acceptable to it in relation to the Substituted Obligor will execute and Obligor:
(iv) without prejudice to the Issuer shall procure rights of reliance of the Note Trustee under Subclause 15.2(b) the Note Trustee is satisfied that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such said substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholdersthe Noteholders;
(Gv) ▇▇▇▇▇'▇ and S&P have confirmed in writing to the Note Trustee that the substitution of the Substituted Obligor will not result in a downgrading of the then current credit rating of such rating agencies applicable to the class of debt represented by the Notes;
(vi) if the Substituted Obligor is subject generally to the taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the "Substituted Territory") other than the territory to the taxing jurisdiction of which (or to any such authority of or in which) the Relevant Issuer is subject generally (the "Issuer's Territory"), the Substituted Obligor shall (unless the Note Trustee otherwise agrees) give to the Note Trustee an undertaking satisfactory to the Note Trustee in terms corresponding to Condition 9 (Taxation) with the substitution for the references in that Condition to the Relevant Issuer's Territory of references to the Substituted Territory whereupon the Trust Deed, the Notes, the Certificates, the Receipts, the Coupons and the Talons shall be read accordingly;
(vii) if any two directors of the Substituted Obligor certify that it will be solvent immediately prior to such substitution, the Note Trustee need not have regard to the Substituted Obligor's financial condition, profits or prospects or compare them with those of the Relevant Issuer or any previous substitute under this Subclause;
(viii) the Relevant Issuer, and the Substituted Obligor comply with such other requirements as the Note Trustee may direct in the interests of the ETP SecurityholdersNoteholders, the Couponholders and the Receiptholders; and
(Hix) a legal opinion satisfactory to (unless the Trustee Relevant Issuer's successor in business is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and Substituted Obligor) the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all obligations of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditionsunder this Trust Deed, the Security DocumentsNotes, the other Programme Documents Receipts, and the ETP Securities as Coupons are guaranteed by the principal debtor in place of the Relevant Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionNote Trustee's satisfaction.
Appears in 1 contract
Sources: Trust Deed (PPL Corp)
Substitution. The Trustee may, without the consent of the ETP Securityholders, Noteholders or Couponholders but subject to the prior written consent of the relevant Swap Counterparty and/or Option Counterparty and provided that Rating Agency Affirmation has been received by the Trustee at the time of the proposed substitution from each Authorised Participant and the Margin Loan ProviderRating Agency (if any) then rating any Outstanding Notes, agree to the substitution, substitution in place of the Issuer (or of any previous substitute) substitute under this Clause 15.2 as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities in respect of each Series, any one or more Series of any other company (incorporated in any jurisdiction) (any such substitute company being hereinafter in this Clause 15.2 referred to as the "“Substituted Obligor"Issuer”), provided that:
(A) a deed 15.2.1 an undertaking is executed or undertaking given by the Substituted Obligor Issuer to the Trustee, Trustee in a form and manner satisfactory to the Trustee, agreeing Trustee to be bound by the Security Documents terms of this Principal Trust Deed and any relevant Supplemental Trust Deed and by the ETP Securities of each Series Conditions (with such any consequential amendments as the Trustee which may deem be appropriate) as fully as if the Substituted Obligor Issuer had been a party to this Principal Trust Deed and named herein and in the Security Documents Notes and Coupons of the ETP Securities relevant Series as the principal debtor in place of the Issuer;
(B) 15.2.2 the Substituted Obligor assumes all rightsIssuer acquires the Issuer’s equity of redemption in the relevant Mortgaged Property, obligations and liabilities in relation becomes a party to the Secured PropertySwap Agreement, the Agency Agreement and the Custody Agreement, acknowledges the Security security created in respect thereof pursuant to the Security Documents relevant Supplemental Trust Deed and takes all such action as the Trustee may require so that the Security each such security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer legal charge for the obligations of the Substituted ObligorIssuer;
(C) 15.2.3 if any director or the auditors of the Substituted Obligor certifies Issuer certify that it the Substituted Issuer will be solvent immediately after such substitutionthe time at which the said substitution is to be effected, the Trustee need shall not have regard to the Substituted Obligor’s financial condition, profits or prospects of such Substituted Issuer or compare them the same with those of the Issuer;
(D) 15.2.4 the Trustee will shall be satisfied (if it requires, by reference to legal opinions) that (ai) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor Issuer of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series Notes and any Programme Document Credit Support Document, Swap Agreement and Option Agreement have been obtained and (bii) such approvals and consents are at the time of substitution in full force and effect;
(E) 15.2.5 the Issuer and the Substituted Obligor will Issuer shall execute and the Issuer shall procure that the Margin Loan Provider any Option Counterparty, any Swap Counterparty and any other Programme Party will Credit Support Provider shall execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders Noteholders as the Trustee may direct;; and
(F) 15.2.6 in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, such Notes or Coupons agree to a change of the law from time to time governing such ETP Securities Notes and Coupons and/or the Supplemental this Principal Trust Deed and/or the Security Documentsany relevant Supplemental Trust Deed, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) Noteholders and provided that a legal opinion is provided to the Issuer Swap Counterparty opining that such change would not prejudice the interests of the Swap Counterparty, and provided that such substitution shall be subject to the relevant provisions of this Trust Deed and the Substituted Obligor comply with Swap Agreement and/or the Option Agreement (as applicable) and to such other requirements amendments thereof as the Trustee may direct deem appropriate and, in the interests case of the ETP Securityholders; and
Swap Agreement and/or the Option Agreement (H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents willas applicable), if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer Swap Counterparty and/or Option Counterparty (or of any previous substituteas applicable) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionmay agree.
Appears in 1 contract
Sources: Principal Trust Deed
Substitution. The (a) Procedure: the Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderNoteholders, agree to the substitution, in place of the Issuer (or of any previous substitutesubstitute under this Clause) of any other entity (hereinafter called the “Substituted Obligor”) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thathereunder if:
(Ai) a trust deed is executed or some other written form of undertaking is given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of this Trust Deed and the ETP Securities of each Series (Notes with such any consequential amendments as which the Trustee may deem appropriate) , as fully as if the Substituted Obligor had been named in this Trust Deed and on the Security Documents and the ETP Securities Notes as the principal debtor in place of the IssuerIssuer (or of any previous substitute under this Clause);
(Bii) arrangements are made to the satisfaction of the Trustee for the Noteholders and the Trustee to have or be able to have the same or equivalent rights against the Substituted Obligor as they have against the Issuer (or any such previous substitute);
(iii) the Substituted Obligor assumes all rights, obligations and liabilities in relation certifies to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with the its assumption by the Substituted Obligor of liability as principal debtor in respect of, of the Notes in place of the Issuer (or such previous substitute as aforesaid) and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(Eiv) the Issuer and the Substituted Obligor will execute and the Issuer shall procure Trustee is satisfied that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such said substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements Noteholders as the Trustee may direct in the interests of the ETP Securityholdersa class; and
(Hv) a legal opinion satisfactory without prejudice to the Trustee generality of the preceding sub clauses (a)(i) to (iv) where the Substituted Obligor is provided concerning any proposed substitution. An agreement by incorporated, domiciled or resident in a territory other than Kazakhstan, undertakings or covenants are given in terms corresponding to the Trustee pursuant to this provisions of Condition 14.3 and 9 (Taxation) with the Security Documents willsubstitution for (or, if so expressed, release as the Issuer (or a previous substitute) from any or all of its obligations under the Security Documentscase may be, the ETP Securities and addition to) references to Kazakhstan with references to the other relevant Programme Documents. The territory in which the Substituted Obligor shall give notice of the substitution is incorporated, domiciled or resident or to the ETP Securityholders within 14 calendar days taxing jurisdiction of the execution which, or of such documents and compliance with such requirements. On completion any political sub division or authority of the formalities set out or in this Condition 14.3 and the Security Documentswhich, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.is otherwise subject generally;
Appears in 1 contract
Sources: Trust Deed
Substitution. 14.2.1 The Trustee may, without only with the consent of the ETP SecurityholdersNoteholders, but subject to the prior consent holder of each Authorised Participant and the Margin Loan ProviderReceipts (if any) or Couponholders (if any), agree to the substitution, in place of the Issuer (or of any previous substitute) substitute under this Clause 14.2.1), as the principal debtor under the Security Documents, the other Programme Documents to which it is a party Trust Deed and the ETP Securities of each Seriesrelevant Notes, Receipts, Coupons and Talons, as applicable, of any other company (incorporated in any jurisdiction) (any such substitute company being the "“Substituted Obligor"”), provided that:
(Ai) a deed is executed or an undertaking is given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents Trust Deed and the ETP Securities of relevant Notes, Receipts, Coupons and Talons and each Series other Transaction Agreement (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents Trust Deed and the ETP Securities other Transaction Agreements and the relevant Notes, Receipts, Coupons and Talons as the principal debtor in place of the Issuer;
(Bii) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Mortgaged Property, acknowledges the Security created in respect thereof pursuant to the Trust Deed and any other Security Documents Document and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(Ciii) if any director two directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(Div) the Trustee will shall be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series relevant Notes, Receipts, Coupons and any Programme Document Talons and the Transaction Agreements have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(Ev) the Issuer and the Substituted Obligor will shall execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will each relevant Transaction Counterparty shall execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may directeffective;
(Fvi) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securitiesrelevant Notes, Receipts, Coupons or Talons, agree to a change of the law from time to time governing such ETP Securities Notes, Receipts, Coupons or Talons and/or the Supplemental Trust Deed and/or the Security Documentsany other Transaction Agreement, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholdersthe Noteholders;
(Gvii) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersNoteholders; and
(Hviii) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.
Appears in 1 contract
Sources: Master Trust Terms
Substitution. The 26.1 Any substitution of the Issuer as principal debtor under these presents pursuant to Condition 8.4 (Mandatory Redemption of the Notes for Taxation or Other Reasons) or Condition 13.19 (Issuer Substitution Condition), shall be effected in accordance with the following terms and conditions and the Note Trustee and Security Trustee may, without the consent of any Noteholder or Secured Creditor agree with the ETP Securityholders, but subject Issuer in such substitution:
(a) a trust deed is executed or some other form of undertaking is given by the company to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, be substituted as principal debtor under these presents in place of the Issuer (or of any previous substitutethe New Company) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Note Trustee and Security Trustee, agreeing to be bound by the Security Documents and the ETP Securities provisions of each Series (these presents with such any consequential amendments as which the Note Trustee may deem appropriate) appropriate as fully as if the Substituted Obligor New Company had been named in the Security Documents and the ETP Securities these presents as the principal debtor in place of the IssuerIssuer;
(b) except where all of the assets and undertaking of the Issuer are transferred to the New Company, the Issuer unconditionally and irrevocably guarantees all amounts payable under these presents to the satisfaction of the Note Trustee and Security Trustee and such guarantee is secured over all of the assets and undertaking of the Issuer to the satisfaction of the Note Trustee;
(Bc) where all or substantially all of the Substituted Obligor assumes all rights, obligations and liabilities in relation assets of the Issuer (or any previous substitute) are transferred to the Secured PropertyNew Company, the New Company:
(i) acquires the Issuer's (or such previous substitute's) equity of redemption in the Charged Assets (other than the undertaking of the Issuer or any previous substitute);
(ii) becomes a party to all the Transaction Documents to which the Issuer (or such previous substitute) is a party;
(iii) acknowledges the Security and the other matters created and effected in respect thereof pursuant to the Security Documents and Deed of Charge; and
(iv) takes all such action as the Note Trustee and Security Trustee may require so that the Charged Assets continue to be subject to the Security constitutes a valid charge, pledge and the other matters created and effected in respect thereof pursuant to the Deed of Charge and otherwise effected or other security interest over maintained in all respects corresponding to those previously subsisting on the Secured Property as was originally created by part of the Issuer for the obligations of the Substituted Obligoror such previous substitute;
(Cd) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitutionNew Company is a single purpose company similar to, and with like constitution as, and having substantially the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of same restrictions and prohibitions on its activities and operations as the Issuer, and undertakes to be bound by provisions corresponding to those set out in the Conditions;
(De) the Note Trustee will be satisfied (if it requires, by reference and Security Trustee is provided with legal opinions from a law firm acceptable to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor Note Trustee in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force form and effectsubstance satisfactory to it;
(Ef) each of the Rating Agencies confirms in writing to the Note Trustee and Security Trustee that its then current rating of the Notes will not be downgraded or withdrawn as a result of such substitution;
(g) the Issuer and the Substituted Obligor will execute and the Issuer New Company shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Note Trustee and/or Security Trustee may direct in the interests of the ETP SecurityholdersNoteholders;
(h) (where applicable) Condition 8.4 (Mandatory Redemption of the Notes for Taxation or Other Reasons) shall be modified accordingly;
(i) without prejudice to the rights of reliance of the Note Trustee and Security Trustee under paragraph (j) of this Clause 26.1, the Note Trustee and/or Security Trustee (acting on the direction of the Note Trustee) is satisfied that the relevant transaction is not materially prejudicial to the interests of the Noteholders; and
(Hj) a legal opinion satisfactory if two directors of the New Company (or other officers acceptable to the Note Trustee and/or Security Trustee) shall certify that the New Company is provided concerning solvent both at the time at which the relevant transaction is proposed to be effected and immediately thereafter (which certificate the Note Trustee may rely upon absolutely) the Note Trustee and/or Security Trustee shall not be under any proposed substitution. An agreement by duty to have regard to the Trustee pursuant financial condition, profits or prospects of the New Company or to this Condition 14.3 and compare the Security Documents willsame with those of the Issuer.
26.2 Any trust deed or undertaking referred to in Clause 26.1(a) above shall, if so expressed, operate to release the Issuer (or a previous substitute) from any or all of its obligations as principal debtor under the Security Documents, the ETP Securities and the other relevant Programme Documentsthese presents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within Not later than 14 calendar days of after the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor New Company shall give notice thereof in a form previously approved by the Note Trustee to the Noteholders in the manner provided in the Conditions. Upon the execution of such documents and compliance with such requirements, the New Company shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents as the principal debtor in place of the Issuer (or of any previous substitute) under these presents and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities presents shall be deemed to be amended modified in such manner as shall be necessary to give effect to the above provisions and references in these presents to the Issuer shall, unless the context otherwise requires, be deemed to be or include references to the New Company.
26.3 The Note Trustee and Security Trustee shall be entitled to refuse to approve any New Company if, pursuant to the law of the country of incorporation of the New Company, the assumption by the New Company of its obligations hereunder imposes responsibilities and Liabilities on the Note Trustee and/or the Security Trustee over and above those which have been assumed under the Transaction Documents.
26.4 In connection with any proposed substitution, the Note Trustee and Security Trustee shall not have regard to, or be in any way liable for, the consequences of such substitution for individual Noteholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory.
26.5 No Noteholder shall, in connection with any such substitution, be entitled to claim from the Issuer any indemnification or payment in respect of any tax consequence of any such individual Noteholders.
Appears in 1 contract
Sources: Trust Deed
Substitution. 14.2.1 The Trustee may, without the consent of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan ProviderNoteholders or Couponholders, agree to the substitution, substitution of the Issuer’s successor in business or any Subsidiary of the Issuer or its successor in business (the “Substituted Obligor”) in place of the Issuer (or of any previous substitutesubstitute under this sub-Clause) as the principal debtor under the Security Documentsthis Trust Deed, the other Programme Documents to which it is a party Notes, the Coupons and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), Talons provided that:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by this Trust Deed, the Security Documents Notes, the Coupons and the ETP Securities of each Series Talons (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in this Trust Deed, the Security Documents Notes, the Certificates, the Coupons and the ETP Securities Talons as the principal debtor in place of the Issuer;
(Bii) if the Substituted Obligor assumes all rights, obligations and liabilities in relation is subject generally to the Secured Property, acknowledges taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Security created in respect thereof pursuant “Substituted Territory”) other than the territory to the Security Documents and takes all taxing jurisdiction of which (or to any such action as authority of or in which) the Issuer is subject generally (the “Issuer’s Territory”), the Substituted Obligor shall (unless the Trustee may require so that otherwise agrees) give to the Security constitutes a valid charge, pledge or other security interest over Trustee an undertaking satisfactory to the Secured Property as was originally created by Trustee in terms corresponding to Condition 8 with the Issuer substitution for the obligations references in that Condition to the Issuer’s Territory of references to the Substituted Obligor;Territory whereupon the Trust Deed, the Notes, the Certificates, the Coupons and the Talons shall be read accordingly
(Ciii) if any director two directors of the Substituted Obligor certifies certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(Giv) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; Noteholders and
(Hv) a legal opinion satisfactory to (unless the Trustee Issuer’s successor in business is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and Substituted Obligor) the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all obligations of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditionsunder this Trust Deed, the Security Documents, the other Programme Documents Notes and the ETP Securities as the principal debtor in place of Coupons are guaranteed by the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionTrustee’s satisfaction.
Appears in 1 contract
Sources: Trust Deed
Substitution. The Trustee may7.8.1 Upon each occurrence of any of (i) the appointment by the Company or another relevant Group Company of a joint bookrunner or lead underwriter in connection with an IPO, without (ii) the consent delivery of an Exit Notice under Clause 7.7.1(a) in respect of a Trade Sale, or (iii) the delivery of a Tag Along Notice in respect of a Tag Along Sale under Clause 8.4.2 (each, a “Substitution Event”), the Warrantholders and Exercise Shareholders (each, a “Substituting Holders”) as a group shall have the option, exercisable by the Lead Holder by giving written notice of its intention to do so to the Company (the “Substitution Notice”), to require the Company to procure that all (and not less than all) of the ETP Securityholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place Warrants and/or Shares held by all of the Issuer Warrantholders and Exercise Shareholders be substituted into such number of duly authorized, validly issued, fully paid and non-assessable common shares of the Substitution Entity (as defined below) (or Equity Securities equivalent to common shares under the applicable laws and entity form of any previous substitutethe Substitution Entity) as calculated pursuant to Clause 7.8.4(a) (the principal debtor under the Security Documents“Substitution Shares”) in accordance with this Clause 7.8 (such right, the other Programme Documents to which it is a party and “Substitution Right”). For the ETP Securities avoidance of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided thatdoubt:
(Aa) the Substitution Right shall become exercisable each time a deed is executed or undertaking given by the Substituted Obligor Substitution Event occurs (each instance of which shall give rise to the Trustee, in form an independent and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place non-exclusive opportunity for exercise of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP SecurityholdersSubstitution Right); and
(Hb) the Company or another relevant Group Company shall not trigger a legal opinion satisfactory Substitution Event at any point prior to Inspire obtaining the Final Casino License unless the Company has obtained the approval of the change of shareholding due in respect of the Substitution Transaction by the relevant Governmental Authority.
7.8.2 The Substitution Notice shall specify (i) the date on which the Substitution Shares will be transferred to the Trustee Substituting Holders and (ii) the address of each Substituting Holder to which delivery of their respective share certificates should be made.
7.8.3 The applicable Group Company, the relevant Equity Securities of which will be the Substitution Shares into which the Warrants and/or Shares shall be substituted upon the exercise of the Substitution Right for purposes of this Clause 7.8 (the “Substitution Entity”), shall be as follows:
(a) if the relevant Substitution Event is provided concerning the appointment of a joint bookrunner or lead underwriter in connection with an IPO, the Substitution Entity shall be such Group Company that is the subject of such IPO;
(b) if the relevant Substitution Event is the delivery of an Exit Notice under Clause 7.7.1(a) in respect of a Trade Sale, the Substitution Entity shall be such Group Company that is the subject of such Trade Sale; and
(c) if the relevant Substitution Event is the delivery of a Tag Along Notice under Clause 8.4.2, the Substitution Entity shall be such Group Company which is the subject of such Tag Along Sale. For the avoidance of doubt, the Group Company that is the subject of any proposed substitution. An agreement IPO or Trade Sale being initiated by the Trustee pursuant MGE Parties shall be determined by the MGE Parties in their sole discretion.
7.8.4 Pursuant to this Condition 14.3 and the Security Documents will, if so expressed, release exercise of the Issuer (or a previous substitute) from any or all of its obligations under the Security DocumentsSubstitution Right, the ETP Securities Company shall (and MGE Shareholder shall cause the other relevant Programme Documents. The Substituted Obligor shall give notice Company to) procure that the Group Company which is the direct parent of the substitution Substitution Entity (the “Substitution Parent”) shall transfer, or procure to be transferred, such relevant number of shares of the Substitution Entity held by the Substitution Parent, free from all Encumbrances (other than any restrictions on transfer imposed by applicable securities Laws or this Agreement), to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities Substituting Holders as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitution.follows:
Appears in 1 contract
Sources: Warrant Agreement (Mohegan Tribal Gaming Authority)
Substitution. The Trustee mayrelevant Issuer, or any previously substituted company, may at any time, without the consent of the ETP SecurityholdersNoteholders or the Couponholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place of the Issuer (or of any previous substitute) substitute for itself as the principal debtor under the Security Documents, the other Programme Documents to which it is a party Notes and the ETP Securities Coupons, a Subsidiary of each Series, of any other company Castellum (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"Substitute), provided thatthat no payment in respect of the Notes or the Coupons is at the relevant time overdue. The substitution shall be made by a deed poll (the Deed Poll), to be substantially in the form exhibited to the Agency Agreement, and may take place only if:
(Ai) a deed is executed or undertaking given by the Substituted Obligor Substitute shall have become party to the TrusteeAgency Agreement mutatis mutandis, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor it had been named in the Security Documents an original party thereto and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for shall assume the obligations of the Substituted Obligorrelevant Issuer under the Deed of Covenant relating to the Notes;
(Cii) if any director the Substitute shall, by means of the Substituted Obligor certifies that Deed Poll, agree to indemnify each Noteholder and Couponholder against any withholding, tax, duty, assessment or governmental charge which is imposed on it will be solvent immediately after such substitutionby (or by any authority in or of) the jurisdiction of the country of the Substitute’s residence for tax purposes and/or, the Trustee need if different, of its incorporation with respect to any Note, Coupon or Deed of Covenant and which would not have regard been so imposed had the substitution not been made, as well as against any withholding, tax, duty, assessment or governmental charge, and any cost or expense, relating to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuersubstitution;
(Diii) where the Trustee will Substitute is not Castellum AB and in the event that all the assets and liabilities of Castellum AB are not assumed by the Substitute, the obligations of the Substitute under the Deed Poll, the Agency Agreement, the Deed of Covenant, the Notes and the Coupons shall be satisfied unconditionally and irrevocably guaranteed by Castellum AB substantially in the form of the guarantee contained in the Deed Poll;
(if it requires, by reference to legal opinions) that (aiv) all action, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary governmental and regulatory approvals and consents necessary for or in connection with consents) to ensure that the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations underDeed Poll, the ETP Securities Agency Agreement, the Deed of each Series Covenant, the Notes and any Programme Document Coupons represent valid, legally binding and enforceable obligations of the Substitute and (in the case of Notes issued by Castellum Finance) in the case of the Deed Poll of Castellum have been obtained taken, fulfilled and (b) such approvals done and consents are at the time of substitution in full force and effect;
(Ev) the Issuer Substitute, if incorporated in a jurisdiction other than England, shall have appointed an agent to receive, for and the Substituted Obligor will execute on its behalf, service of process in any proceedings in England;
(vi) each listing authority and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments stock exchange (if any) as on which the Trustee may require in order that Notes are then admitted to listing or trading shall have confirmed that, following the proposed substitution, the Notes will be admitted to listing or trading by such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may directlisting authority or stock exchange;
(Fvii) in connection with any proposed substitution the Substitute shall have delivered to the Principal Paying Agent a certificate signed by two authorised signatories of the Issuer, Substitute that the Trustee may, without Substitute is solvent at the consent of time at which the holders of the ETP Securities, agree substitution is proposed to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholderseffected;
(Gviii) legal opinions, subject to customary assumptions and qualifications, addressed to the Issuer Noteholders shall have been delivered to them (care of the Principal Paying Agent) from a lawyer or firm of lawyers with a leading securities practice in each jurisdiction referred to in (ii) above and in England confirming, as applicable, (A) that the Substituted Obligor comply with such other requirements Substitute has obtained all necessary approvals for its assumptions of its duties and liabilities as the Trustee may direct in the interests Substitute and, where relevant, Castellum AB has obtained all necessary approvals for its giving of the ETP Securityholdersguarantee referred to in (iii) above and (B) any documents to which the Substitute is a party under paragraphs (i) and (ii) above and to which Castellum AB is a party under (iii) above, as the case may be, constitute legal, valid, binding and enforceable obligations of the Substitute or Castellum AB, as the case may be; and
(Hix) a legal opinion satisfactory the relevant Issuer shall have given at least 14 days’ prior notice in accordance with Condition 14 (Notices) of such substitution to the Trustee is provided concerning any proposed substitutionNoteholders stating that copies, or, pending execution, the agreed text of all documents in relation to the substitution which are referred to above, or which might otherwise reasonably be regarded as material to Noteholders, will be available for inspection at the specified office of each of the Paying Agents. An agreement by the Trustee pursuant References in Condition 10 (Events of Default and Enforcement) to this Condition 14.3 and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or all of its obligations under the Security Documents, the ETP Securities and the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor Notes shall be deemed to be named in these Conditions, include obligations under the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionDeed Poll.
Appears in 1 contract
Sources: Agency Agreement
Substitution. The Trustee may20.1 Without an Extraordinary Resolution or a Written Resolution, without the consent Issuer (or any previous substitute under this sub-clause, the "Substitute") may substitute an Issuer Successor for itself as the principal debtor under these presents; provided that:
(a) the substitution results directly from the merger or consolidation by the Issuer (or any such previous Substitute) with the Substitute as a result of which all of the ETP Securityholders, but subject to the prior consent of each Authorised Participant assets and the Margin Loan Provider, agree to the substitution, in place undertakings of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"previous Substitute), provided that:are transferred to the Substitute;
(Ab) immediately before and after giving effect to the substitution, no Event of Default shall have occurred and be continuing;
(c) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Substitute to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of these presents and the ETP Securities of each Series (Notes with such any consequential or other amendments which may be appropriate as the Trustee may deem appropriate) fully as if the Substituted Obligor Substitute had been named in the Security Documents and the ETP Securities these presents as the principal debtor in place of the IssuerIssuer (or any such previous Substitute);
(Bd) arrangements are made to the satisfaction of the Trustee for the Noteholders to have or be able to have the same or equivalent rights against the Substitute as they have against the Issuer (or any such previous Substitute);
(e) the Substituted Obligor assumes all rights, obligations Issuer (or any such previous Substitute) and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all Substitute comply with such action other reasonable requirements as the Trustee may require so that direct in the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations interests of the Substituted ObligorNoteholders;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(Df) the Trustee will be is satisfied (if it requires, by reference to legal opinions) that (a) the Substitute has obtained all necessary governmental and regulatory and internal corporate approvals and consents necessary for its assumption of the obligations and liabilities under these presents in place of the Issuer (or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect ofany such previous Substitute), and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(Eg) (without prejudice to the generality of paragraphs (a) to (e) (inclusive) of this sub-clause) where the Substitute is incorporated, domiciled or resident in a territory other than The Netherlands, undertakings or covenants are given in terms corresponding to the provisions of Condition 8 (Taxation) with the substitution for the references to The Netherlands, as appropriate, of references to the territory in which the Substitute is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any political subdivision or authority of or in which, the Substitute is otherwise subject generally and (where applicable) Condition 7(b) (Redemption and Purchase—Redemption for tax reasons) and Clause 4 (Fees, Duties and Taxes) shall be modified accordingly;
(h) as a consequence of such substitution, to the extent the Notes are listed on a Stock Exchange, the Notes continue on the substitution and promptly thereafter to be listed on such Stock Exchange; and
(i) the Issuer and or the Substituted Obligor will execute and Substitute shall have delivered to the Trustee an opinion of an independent lawyer to the effect that neither the Issuer shall procure that or the Margin Loan Provider and any other Programme Party will execute such other deedsSubstitute, documents and instruments (if any) as the Trustee case may require in order that such substitution is fully effective and comply with such other requirements in be, nor the interests Noteholders will recognise income, gain or loss for tax purposes as a result of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of and the Issuer, the Trustee may, without Substitute and the consent of Noteholders will be subject to taxes on the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, same amount and in the opinion of same manner and at the Trustee, same times as would have been the case if such substitution had not be materially prejudicial to the interests of occurred.
20.2 Any such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and Clause 20.1 (Substitution) shall, to the Security Documents will, if extent so expressed, operate to release the Issuer (or a previous substitute) Substitute from any or all of its obligations under these presents. Not later than fourteen days after the Security Documentsexecution of any such documents as aforesaid and after compliance with the Trustee's said requirements, notice thereof shall be given by the ETP Securities and Issuer or previous Substitute, as the other relevant Programme Documents. The Substituted Obligor shall give notice of the substitution case may be, to the ETP Securityholders within 14 calendar days of Noteholders in the manner provided in Condition 13 (Notices).
20.3 Upon the execution of such documents and compliance with such the said requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, the Substituted Obligor Substitute shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents presents and the ETP Securities Agency Agreement as the principal debtor in respect of any Notes in place of the Issuer (or of any previous substitute) Substitute, and these Conditions, the Security Documents, the other Programme Documents presents and the ETP Securities Agency Agreement shall thereupon be deemed to be amended in such manner as shall be necessary to give effect to the substitutionsubstitution and, without prejudice to the generality of the foregoing, any references in these presents to the Issuer shall be deemed to be references to the Substitute.
20.4 If any two directors (or other equivalent officers) of the Substitute shall certify to the Trustee that the Substitute is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to the financial condition, profits or prospects of the Substitute or to compare the same with those of the Issuer or (as the case may be) the previous Substitute.
20.5 The Issuer or previous Substitute shall not be entitled to substitute itself if, pursuant to the law of the country of incorporation, domicile or residence of the Substitute, the assumption by the Substitute of its obligations imposes responsibilities on the Trustee over and above those which have been assumed under these presents.
Appears in 1 contract
Sources: Trust Deed (VEON Ltd.)
Substitution. (a) The Trustee may, without the previous consent or sanction of the ETP Securityholdersholders of the Notes, but subject to the prior consent Coupons or Talons of each Authorised Participant and the Margin Loan Providerany Series, agree with the Issuer to the substitution, in place of the Issuer (or of any previous substitute) as the principal debtor under this Trust Deed in relation to the Security DocumentsNotes, the other Programme Documents to which it is a party Coupons and the ETP Securities Talons of each Seriesany Series and under such Notes, Coupons and Talons, of any other company Holding Company or of any subsidiary of the Issuer (incorporated in any jurisdictionhereinafter called the Substituted Issuer) (any such substitute company being the "Substituted Obligor"), provided that:PROVIDED THAT:
(Ai) a trust deed is executed or some other form of undertaking is given by the Substituted Obligor Issuer to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents terms of this Trust Deed and the ETP Securities Notes, Coupons and Talons of each Series (the relevant Series, with such any consequential amendments as which the Trustee may deem appropriate) , as fully as if the Substituted Obligor Issuer had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Security Documents Issuer and had been named on the ETP Securities Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;Issuer;
(Bii) the Trustee shall be satisfied that (x) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) has obtained all necessary governmental and regulatory approvals and consents necessary for or in connection with its assumption of the assumption by the Substituted Obligor of liability obligations and liabilities as principal debtor under this Trust Deed in respect ofrelation to the Notes, Coupons and Talons of its obligations under, the ETP Securities of each relevant Series and any Programme Document have been obtained under such Notes, Coupons and Talons in place of the Issuer and (by) such approvals and consents are at the time of substitution in full force and effect;
(Eiii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Substituted Issuer at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct or require in the interests of the ETP Securityholders; andholders of the Notes of the relevant Series;
(Hv) without prejudice to the generality of subparagraphs (i), (ii), (iii) and (iv) of this Clause 13.2(a), where the Substituted Issuer is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a legal opinion satisfactory territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 6 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Substituted Issuer is incorporated, domiciled or resident or to the taxing jurisdiction of which, or of any authority of or in which, the Substituted Issuer is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) if the directors of the Substituted Issuer shall certify to the Trustee that it is provided concerning solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(vii) without prejudice to the rights of reliance of the Trustee under paragraph (vi) of this Clause 13.2(a), the Trustee is satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes and Coupons of the relevant Series. Upon the execution of such documents and compliance with the said requirements:
(A) the Substituted Issuer shall be deemed to be named in this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and on such Notes, Coupons and Talons as principal debtor in place of the Issuer and this Trust Deed and the relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any proposed supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution. An ;
(B) the Issuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents willClause 13.2(a), if so expressed, release the Issuer (or a previous substitute) be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Security DocumentsNotes, Coupons and Talons of the ETP Securities relevant Series and such Notes, Coupons and Talons; and
(C) the other relevant Programme Documents. The Substituted Obligor shall Issuer shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the ETP Securityholders within 14 calendar days holders of the Notes of the relevant Series in accordance with Condition 12.
(b) The Trustee may, without the previous consent or sanction of the holders of the Notes, Coupons or Talons of any Series, agree with the Issuer to the substitution, in place of the Issuer as the principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of any Series and under such Notes, Coupons and Talons of a Successor in Business PROVIDED THAT:
(i) a trust deed is executed or some other form of undertaking is given by the Successor in Business to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the terms of this Trust Deed and the Notes, Coupons and Talons of the relevant Series, with any consequential amendments which the Trustee may deem appropriate, as fully as if the Successor in Business had been named in this Trust Deed as principal debtor under such Notes, Coupons and Talons in place of the Issuer and had been named on the Notes, Coupons and Talons of the relevant Series as the principal debtor in place of the Issuer;
(ii) the Trustee shall be satisfied that (x) the Successor in Business has obtained all necessary governmental and regulatory approvals and consents necessary for its assumption of the obligations and liabilities as principal debtor under this Trust Deed in relation to the Notes, Coupons and Talons of the relevant Series and under such Notes, Coupons and Talons in place of the Issuer and (y) such approvals and consents are at the time of substitution in full force and effect;
(iii) arrangements are made satisfactory to the Trustee for the holders of the Notes, Coupons and Talons of the relevant Series to have or be able to have rights against the Successor in Business at least equivalent to the rights they have against the Issuer;
(iv) the Issuer and the Successor in Business comply with such other requirements as the Trustee may direct or require in the interests of the holders of the Notes of the relevant Series;
(v) without prejudice to the generality of paragraphs (i), (ii), (iii) and (iv) of this Clause 13.2(b), where the Successor in Business is incorporated, domiciled or resident in or is otherwise subject generally to the taxing jurisdiction of, or of any authority in, a territory or territories other than the United Kingdom, undertakings or covenants are given in terms corresponding to the provisions of Condition 6 containing, in substitution for the references to the United Kingdom, references to the territory or territories in which the Successor in Business is incorporated, domiciled or resident or the taxing jurisdiction of which, or of any authority of or in which, the Successor in Business is otherwise subject generally and in the event of any such covenant being given the provisions of this Trust Deed shall be read and construed accordingly;
(vi) if the directors of the Successor in Business shall certify to the Trustee that it is solvent at the time at which the said substitution is proposed to be effected, the Trustee shall not be bound to have regard to its financial condition, profits or prospects or to compare the same with those of the Issuer; and
(vii) without prejudice to the rights of reliance of the Trustee under paragraph (vi) of this Clause 13.2(b), the Trustee is satisfied that the said substitution is not materially prejudicial to the interests of the holders of the Notes of the relevant Series. Upon the execution of such documents and compliance with such the said requirements. On completion of :
(A) the formalities set out Successor in this Condition 14.3 and the Security Documents, the Substituted Obligor Business shall be deemed to be named in these Conditionsthis Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the Security Documentsrelevant Series and on such Notes, the other Programme Documents Coupons and the ETP Securities Talons as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents this Trust Deed and the ETP Securities relevant Notes, Coupons and Talons shall thereupon be deemed to be amended in such manner as expressly specified in any supplement to this Trust Deed or, failing which, as shall be necessary to give effect to such substitution;
(B) the substitutionIssuer shall, to the extent so expressed in any such agreement by the Trustee pursuant to this Clause 13.2(b), be released from any or all of its obligations under this Trust Deed as principal debtor in relation to the Notes, Coupons and Talons of the relevant Series and such Notes, Coupons and Talons; and
(C) the Issuer or the Successor in Business shall, unless the Trustee agrees otherwise, within 14 days of such substitution give notice of the substitution to the holders of the Notes of the relevant Series in accordance with Condition 12.
Appears in 1 contract
Sources: Trust Deed
Substitution. 11.1 If the Department approves (or is deemed to have approved) a Substitution Notice pursuant to Section 10 above, the Substituted Entity named therein shall execute a duly completed Substitute Accession Agreement substantially in the form attached hereto as Schedule A and submit it to the Department (with a copy thereof to the other parties to this Direct Agreement). The Trustee mayassignment set forth in the Substitute Accession Agreement shall become effective on and from the date on which (a) the Collateral Agent or the Substituted Entity lawfully succeeds to all the Developer’s Interest through exercise of foreclosure rights and actions on security interests or through transfer from Developer in lieu of foreclosure, without (b) the consent Department receives all payments described in Section 11.4 below and (c) the Department countersigns the Substitute Accession Agreement (the “Substitution Effective Date”), or the date that is ten days after the date the Department receives the completed Substitute Accession Agreement if the Department fails to sign the Substitute Accession Agreement.
11.2 As of the ETP Securityholders, but subject Substitution Effective Date:
(a) Such Substituted Entity shall become a party to the prior consent of each Authorised Participant Contract Documents and the Margin Loan Provider, agree to the substitution, this Direct Agreement in place of the Issuer (or of any previous substitute) as the principal debtor under the Security Documents, the other Programme Documents to which it is a party and the ETP Securities of each Series, of any other company (incorporated in any jurisdiction) (any such substitute company being the "Substituted Obligor"), provided that:
(A) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the IssuerDeveloper;
(Bb) the Substituted Obligor assumes all rights, All of Developer's obligations and liabilities in relation under the Contract Documents and under this Direct Agreement arising from and after the Substitution Effective Date shall be immediately and automatically transferred to the Secured PropertySubstituted Entity, acknowledges the Security created in respect thereof pursuant without release of Developer from any such obligations and liabilities to the Security Documents and takes all such action as Department. Notwithstanding the Trustee may require so that the Security constitutes a valid charge, pledge foreclosure or other enforcement of any security interest over created or perfected by a Financing Document, and notwithstanding occurrence of the Secured Property as was originally created by Substitution Date, Developer shall remain liable to the Issuer Department for the payment of all sums owing to the Department under the Agreement and for the performance and observance of all of Developer’s covenants and obligations under the Agreement;
(c) Such Substituted Entity shall exercise and enjoy the rights and perform the obligations of Developer under the Substituted Obligor;
(C) if any director of the Substituted Obligor certifies that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those of the Issuer;
(D) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental Contract Documents and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document have been obtained and (b) such approvals and consents are at the time of substitution in full force and effect;
(E) the Issuer and the Substituted Obligor will execute and the Issuer shall procure that the Margin Loan Provider and any other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require in order that such substitution is fully effective and comply with such other requirements in the interests of the ETP Securityholders as the Trustee may direct;
(F) in connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholdersthis Direct Agreement; and
(Hd) a legal opinion satisfactory The Department shall owe its obligations (including any undischarged liability with respect to any loss or damage suffered or incurred by Developer prior to the Trustee is provided concerning Substitution Effective Date) under the Contract Documents and this Direct Agreement to such Substituted Entity in place of Developer, subject to the Department’s rights under the Contract Documents and this Direct Agreement (including the right to offset any proposed substitution. An agreement losses or damages suffered or incurred by the Trustee Department as provided under the Agreement).
11.3 The Department shall use its reasonable efforts to facilitate the transfer to the Substituted Entity of Developer's obligations under the Agreement and this Direct Agreement.
11.4 The Substituted Entity shall pay to the Department on the Substitution Effective Date all amounts due to the Department under the Agreement and this Direct Agreement, including the Department’s reasonable costs and expenses incurred in connection with (a) Developer’s default and termination, (b) the Department’s activities with respect to the Project during any period the Department was in possession of the Project, and (c) the approval of the Substituted Entity, all as of the Substitution Effective Date and notified to such Substituted Entity prior to the Substitution Effective Date. The Department’s receipt of the payment pursuant to this Condition 14.3 Section
11.5 The occurrence of the Substitution Effective Date shall not extinguish prior Developer Defaults that remain uncured, and the Security Documents will, if so expressed, release the Issuer (or a previous substitute) from any or Department shall continue to have all of its obligations rights and remedies available under the Security DocumentsAgreement with respect to such Developer Defaults, including any applicable termination rights, subject to (a) the limitations on the Department’s exercise of such rights and remedies set forth in this Direct Agreement during any applicable Cure Period that continues after the Substitution Effective Date, (b) the limitations on termination due to accumulation of Noncompliance Points prior to the Substitution Effective Date to the extent provided in Section 12.4.3 of the Agreement and (c) Section 13 below.
11.6 As of the Substitution Effective Date, the ETP Securities and Department shall enter into an equivalent direct agreement on substantially the other relevant Programme Documents. The Substituted Obligor same terms as this Direct Agreement, save that Developer shall give notice of the substitution to the ETP Securityholders within 14 calendar days of the execution of such documents and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 and the Security Documents, be replaced as a party by the Substituted Obligor shall be deemed to be named in these Conditions, the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionEntity.
Appears in 1 contract
Sources: Project Lease
Substitution. The Trustee mayIssuer, or any previously substituted company, may at any time, without the consent of the ETP SecurityholdersNoteholders or the Couponholders, but subject to the prior consent of each Authorised Participant and the Margin Loan Provider, agree to the substitution, in place of the Issuer (or of any previous substitute) substitute for itself as the principal debtor under the Security Documents, the other Programme Documents to which it is a party Notes and the ETP Securities of each Series, of any other Coupons a company (incorporated the Substitute) as principal debtor under the Notes or Coupons in any jurisdiction) the manner specified in Schedule 6 to the Agency Agreement, provided that no payment in respect of the Notes or the Coupons is at the relevant time overdue. The substitution shall be made by a deed poll (any such substitute company being the "Substituted Obligor"Deed Poll), provided thatto be substantially in the form exhibited to the Agency Agreement, and may take place only if:
(Ai) a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by the Security Documents and the ETP Securities of each Series (with such consequential amendments as the Trustee may deem appropriate) as if the Substituted Obligor had been named in the Security Documents and the ETP Securities as the principal debtor in place of the Issuer;
(B) the Substituted Obligor assumes all rights, obligations and liabilities in relation to the Secured Property, acknowledges the Security created in respect thereof pursuant to the Security Documents and takes all such action as the Trustee may require so that the Security constitutes a valid charge, pledge or other security interest over the Secured Property as was originally created by the Issuer for the obligations of the Substituted ObligorSubstitute under the Deed Poll, the Notes and the Coupons shall be unconditionally and irrevocably guaranteed by Equinor ASA (in such capacity, the New Guarantor and such guarantee, the New Guarantee) and (in the case of Notes having the benefit of the Guarantee) the Guarantor, by means of the Deed Poll;
(Cii) if all action, conditions and things required to be taken, fulfilled and done (including the obtaining of any director necessary consents) to ensure that the Deed Poll, the Notes and Coupons represent valid, legally binding and enforceable obligations of the Substituted Obligor certifies that it will be solvent immediately after such substitution, Substitute and in the Trustee need not have regard to the Substituted Obligor’s financial condition, profits or prospects or compare them with those case of the Issuer;
Deed Poll of the New Guarantor and (Din the case of Notes having the benefit of the Guarantee) the Trustee will be satisfied (if it requires, by reference to legal opinions) that (a) all necessary governmental and regulatory approvals and consents necessary for or in connection with the assumption by the Substituted Obligor of liability as principal debtor in respect of, and of its obligations under, the ETP Securities of each Series and any Programme Document Guarantor have been obtained taken, fulfilled and (b) such approvals done and consents are at the time of substitution in full force and effect;
(Eiii) the Substitute shall have become party to the Agency Agreement, with any appropriate consequential amendments, as if it had been an original party to it;
(iv) each stock exchange or listing authority which has the Notes listed on such stock exchange shall have confirmed that following the proposed substitution of the Substitute the Notes would continue to be listed on such stock exchange;
(v) legal opinions addressed to the Noteholders shall have been delivered to them (care of the Agent) from a lawyer or firm of lawyers with a leading securities practice in (i) the Kingdom of Norway and, if applicable, any Substitute Jurisdiction (as defined in the final paragraph of this Condition 14 (Substitution)) and (ii) England, in each case as to the fulfilment of the preceding conditions of this Condition 14 (Substitution) and the other matters specified in the Deed Poll; and
(vi) the Issuer shall have given at least 14 days' prior notice of such substitution to the Noteholders, stating that copies, or, pending execution, the agreed text, of all documents in relation to the substitution which are referred to above, or which might otherwise reasonably be regarded as material to Noteholders, will be available for inspection at the specified office of each of the Paying Agents. References in Condition 8 (Events of Default) to obligations under the Notes shall be deemed to include obligations under the Deed Poll, and the Substituted Obligor will execute events listed in Condition 8 (Events of Default) shall be deemed to include the New Guarantee not being (or being claimed by the New Guarantor not to be) in full force and effect and the Issuer shall procure that provisions of Condition 8(c) to 8(e) (Events of Default) inclusive (other than the Margin Loan Provider and any words "other Programme Party will execute such other deeds, documents and instruments (if any) as the Trustee may require than in order that such substitution is fully effective and comply with such other requirements in the interests respect of the ETP Securityholders as termination of the Trustee may direct;
Guarantee pursuant to Condition 2(c) (FTermination of Guarantee)" in Condition 8(e)) shall be deemed to apply in addition to the New Guarantor. In connection with any proposed substitution of the Issuer, the Trustee may, without the consent of the holders of the ETP Securities, agree to a change of the law from time to time governing such ETP Securities and/or the Supplemental Trust Deed and/or the Security Documents, provided that such change of law, in the opinion of the Trustee, would not be materially prejudicial to the interests of such ETP Securityholders;
(G) the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the ETP Securityholders; and
(H) a legal opinion satisfactory to the Trustee is provided concerning any proposed substitution. An agreement by the Trustee pursuant to this Condition 14.3 and the Security Documents will14 (Substitution), if so expressed, release the Issuer (or previously substituted company, as the case may be) or Substitute shall not be required to have regard to, or be in any way liable for, the consequences of such substitution for individual Noteholders or the Couponholders resulting from their being for any purpose domiciled or resident in, or otherwise connected with, or subject to the jurisdiction of, any particular territory. No Noteholder or Couponholder shall, in connection with any such substitution, be entitled to claim from the Issuer (or previously substituted company, as the case may be) or Substitute any indemnification or payment in respect of any tax consequence of any such substitution upon such individual Noteholders or Couponholders, except to the extent already provided in Condition 6 (Taxation) as modified in accordance with the following paragraph. Where a previous substitutesubstitution takes place pursuant to this Condition 14 (Substitution) from any or all and the Substitute is subject, by reason of its obligations incorporation or residence for tax purposes, to a jurisdiction or any political subdivision or any authority thereof or therein having power to tax (the Substitute Jurisdiction) other than the Kingdom of Norway (or, as the case may be, the jurisdiction of incorporation or residence for tax purposes of the preceding substituted company) or any political subdivision or any authority thereof or therein having power to tax (the Previous Jurisdiction), references to the Previous Jurisdiction in Condition 5(b) (Redemption for Tax Reasons) and Condition 6 (Taxation) shall, in respect of any payments to be made by the Substitute (but not in respect of payments to be made by (A) the New Guarantor under the Security Documents, New Guarantee or (B) (in the ETP Securities and case of Notes having the other relevant Programme Documents. The Substituted Obligor shall give notice benefit of the substitution Guarantee) the Guarantor), be deemed to be replaced by references to the ETP Securityholders within 14 calendar days of the execution of such documents Substitute Jurisdiction, and compliance with such requirements. On completion of the formalities set out in this Condition 14.3 Conditions (5(b) (Redemption for Tax Reasons) and the Security Documents, the Substituted Obligor 6 (Taxation) shall be deemed to be named in these Conditions, modified accordingly when the Security Documents, the other Programme Documents and the ETP Securities as the principal debtor in place of the Issuer (or of any previous substitute) and these Conditions, the Security Documents, the other Programme Documents and the ETP Securities shall be deemed to be amended as necessary to give effect to the substitutionsubstitution takes place.
Appears in 1 contract
Sources: Agency Agreement