Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more Classes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement. (b) So long as each of the certifications described in clauses (iii)(H) and (vi) below are true and correct as of the related Series Closing Date, the Notes to be issued may be executed by the Issuer and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes on the Original Closing Date and other than with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable Series Supplement) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer upon notice to the Trustee no later than 5:00 p.m. (New York City time) two (2) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following: (i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes (if any); (ii) a Series Supplement for a new Series of Notes or an amendment to the related Series Supplement for Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes; (iii) in the case of any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or otherwise on the applicable Series Closing Date): (A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes; (B) written confirmation from either the Manager or the Issuer that the Rating Agency Condition with respect to the issuance of such Notes has been satisfied; (C) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the issuance of such Notes; (D) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notes; (E) subject to Section 5.16, the Additional Notes DSCR is greater than or equal to 2.00:1.00, in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes; (F) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes; (G) the Series Legal Final Maturity Date of any new Class of Notes will not be prior to the Series Legal Final Maturity Date of any Class of Notes then Outstanding; (H) an Officer’s Certificate, executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date, certifying to the matters set forth in clauses (A) through (G) above and to the effect that: (1) all conditions precedent with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Notes have been satisfied or waived; (2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes; (3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and (4) all representations and warranties of the Issuer in this Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date in all material respects); (I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control Party; (J) all costs, fees and expenses with respect to the issuance of such Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date have been paid or will be paid from the proceeds of the issuance of such Notes; and (K) if such Notes include Subordinated Debt, the terms of such Notes include the Subordinated Debt Provisions to the extent applicable; (iv) a Tax Opinion, dated the applicable Series Closing Date; provided that, if there are no Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be required to be given in connection with the issuance of such Notes; (v) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that: (A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date); (B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer and constitute a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; (C) such Notes have been duly authorized by the Issuer, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms; (D) none of the Securitization Entities is required to be registered under the Investment Company Act within the meaning of Section 3(a)(1) thereof; (E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Notes; (F) based on a reasoned analysis, the assets and liabilities of each Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBC; (G) neither the execution and delivery by the Issuer of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its obligations under such Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) conflicts with the Charter Documents of the Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the Issuer (which orders and decrees may be set forth in a schedule to such opinion); (H) neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) nor the performance by the Issuer of its payment obligations under such Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) violates any applicable law, rule or regulation of any relevant jurisdiction or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made; (I) there is no action, proceeding or investigation pending or threatened against TBC or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities; (J) unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer to the initial purchasers thereof or by the initial purchasers to the initial investors in such Notes to register such Notes under the Securities Act; and (K) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date); (vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that: (A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and (B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture; (vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and (viii) such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require. (c) Upon satisfaction, or waiver (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be in writing), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes), as provided above, such Notes upon execution thereof by the Issuer. (d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes. (e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
Appears in 1 contract
Samples: Base Indenture (Yum Brands Inc)
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment a Supplement to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of the certifications described in clauses clause (iii)(H) and (viiv) below (if applicable) are true and correct as of the related applicable Series Closing Date, the Notes may from time to be issued may time be executed by the Issuer Co-Issuers and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes being issued on the Original Closing Date and other than or in connection with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable a Series SupplementRefinancing Event) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer Co-Issuers upon notice to the Trustee no later than 5:00 p.m. (New York City time) two (2) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer Co-Issuers to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the such Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment a Supplement to the related Series Supplement for Additional Notes of issued under an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer Co-Issuers and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) if any existing Notes shall remain Outstanding following such issuance of such Notes (other than in the case of any new connection with a Series of Refinancing Event or such existing Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) that will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes;
(B) ), written confirmation from either the Manager or the Issuer Co-Issuers that the Rating Agency Condition with respect to the issuance of such Notes has been satisfied;
(Civ) in the case of Additional Notes, if any existing Notes shall remain Outstanding following such issuance of such Additional Notes (other than in connection with a Series Refinancing Event or such existing Notes that will be repaid in full from the proceeds of the issuance of such Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date), one or more Officer’s Certificates, each executed by an Authorized Officer of each Co-Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) no Cash Flow Sweeping Period is in effect or will commence as a result of the issuance of such Additional Notes;
(B) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the such issuance of such Additional Notes;
(DC) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notesissuance;
(ED) subject to Section 5.16, the Additional Notes DSCR Dine Brands Leverage Ratio is greater less than or equal to 2.00:1.00, in each case 7.00x after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof Additional Notes and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(FE) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case 6.50x after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof Additional Notes and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(F) the New Series Pro Forma DSCR is greater than or equal to 2.00x;
(G) the if there is one or more Series Legal Final Maturity Date of any new Class of Notes will not be prior to the Outstanding (other than a Series Legal Final Maturity Date of any Class of Notes then Outstanding;
(H) an Officer’s Certificate, executed by an Authorized Officer Outstanding that will be repaid in full from the proceeds of issuance of the Issuer, dated as new Series of Notes or otherwise on the applicable Series Closing Date), certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent Rating Agency Condition with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Additional Notes have been satisfied or waivedis satisfied;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes;
(3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(4H) all representations and warranties of the Issuer Co-Issuers in this the Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date in all material respects);
(I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to Supplement, except for (i) increases in the Trustee aggregate Outstanding Principal Amount of any existing Series, Class, Subclass or Tranche of Notes and (ii) such changes that are permitted in accordance with the terms hereunder and the Control Partyapplicable Series Supplement, in each case, if such Additional Notes are issued thereunder;
(J) all costs, fees and expenses with respect to the issuance of such Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date (or issuance date with respect to Additional Notes of an existing Series, Class, Subclass or Tranche) have been paid or will be paid from the proceeds of issuance of such Additional Notes or other available amounts;
(K) all conditions precedent with respect to the authentication and delivery of such Additional Notes provided in this Base Indenture, the related Series Supplement and, if applicable, the related Class A-1 Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Notes; andAdditional Notes have been satisfied or waived;
(KL) the Guarantee and Collateral Agreement is in full force and effect as to such Additional Notes;
(M) if such Additional Notes include Subordinated Debt, the terms of any such Additional Notes set forth in the applicable Supplement include the Subordinated Debt Provisions to the extent applicable;
(N) the Series Legal Final Maturity Date for any Additional Notes will not be prior to the Series Legal Final Maturity Date of any Class of Senior Notes then Outstanding;
(O) each of the parties to the Transaction Documents with respect to such Additional Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is one year and one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, that none of the foregoing conditions shall apply and no Officer’s Certificates shall be required under this clause (iv) if there are no Series of Notes Outstanding (apart from the new Series of Notes) on the applicable Series Closing Date, or if all Series of Notes Outstanding (apart from the new Series of Notes) will be repaid in full from the proceeds of the issuance of the new Series of Notes or otherwise on the applicable Series Closing Date;
(v) a Tax Opinion, Opinion dated the applicable Series Closing Date; provided provided, however, that, if there are no Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be Opinion are required to be given in connection with the issuance of such new Series of Notes;
(vvi) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such the Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer Co-Issuers and constitute constitutes a legal, valid and binding agreement of each of the IssuerCo-Issuers, enforceable against each of the Issuer Co-Issuers in accordance with its terms;
(C) such Notes have been duly authorized by the IssuerCo-Issuers, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Notes will be legal, valid and binding obligations of each of the IssuerCo-Issuers, enforceable against each of the Issuer Co-Issuers in accordance with their terms;
(D) none of the Securitization Entities is required to be registered as an “investment company” under the Investment Company Act within the meaning of Section 3(a)(1) thereof1940 Act;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, Agreement and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Notes;
(F) based on a reasoned analysis, the assets and liabilities of each a Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBCDine Brands Global, Inc. or the Manager in a manner prejudicial to Noteholders;
(G) neither the execution and delivery by the Issuer Co-Issuers of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer Co-Issuers of its obligations under such each of the Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) Supplement: (i) conflicts with the Charter Documents of the IssuerCo-Issuers, (ii) constitutes a violation of, or a default under, any material agreement to which any of the Issuer Co-Issuers is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to any of the Issuer Co- Issuers (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer Co-Issuers of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) nor the performance by the Issuer Co-Issuers of its their payment obligations under each of such Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) Supplement: (i) violates any applicable law, rule or regulation of any relevant jurisdiction jurisdiction, or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding proceeding, or investigation pending or threatened against TBC Dine Brands Global, Inc. or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities 1933 Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer Co-Issuers to the initial purchasers purchaser(s) thereof or by the initial purchasers purchaser(s) to the initial investors in such Notes to register such Notes under the Securities 1933 Act; and
(K) all conditions precedent to such issuance have been satisfied and that the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viiivii) such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.
(c) Upon satisfaction, or written waiver by the Control Party (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be Representative in writing), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes)deliver, as provided above, such Notes upon execution thereof by the IssuerCo-Issuers.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided provided, that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new The issuance of any additional Series of Class
A-1 Notes or will require the consent of the Class A-1 Administrative Agents of any existing Series of Class A-1 Notes that will remain Outstanding. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
Appears in 1 contract
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of the certifications described in clauses (iii)(H) and (vi) below are true and correct as of the related Series Closing Date, the Notes to be issued may from time to time be executed by the Issuer Co-Issuers and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes on the Original Closing Date and other than with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable Series SupplementDate) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer Co-Issuers upon notice to the Trustee no later than 5:00 p.m. (New York City time) two (2) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer Co-Issuers to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment to the related Series Supplement for Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer Co-Issuers and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) in the case of any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or otherwise on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Additional Notes;
(B) written confirmation from either the Manager or the Issuer Co-Issuers that the Rating Agency Condition with respect to the issuance of such Additional Notes has been satisfied;
(C) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the issuance of such Additional Notes;
(D) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Additional Notes;
(E) subject to the terms of Section 5.16, the Additional Notes DSCR is greater than or equal to 2.00:1.00, in each case 2.00:1.00 after giving pro forma effect to the issuance of such Additional Notes, the use of proceeds thereof and any repayment of existing Indebtedness, including amounts to fund an irrevocable defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(F) the Senior Leverage Ratio is less than or equal to 6.50:1.00 and the FOCUS Brands Leverage Ratio is less than or equal to 7.00:1.00, in each case as of the related Series Closing Date, after giving pro forma effect to the issuance of such Additional Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a an irrevocable defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes;
(F) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(G) the Series Legal Final Maturity Date of any new Class of Notes (or Tranche or Subclass thereof, if such Class is composed of multiple Tranches and/or Subclasses) will not be prior to the Series Legal Final Maturity Date anticipated repayment date and legal final maturity of any existing Class of Notes then OutstandingOutstanding unless either (x) such new Class, Tranche or Subclass of Notes is refinancing an existing Class, Tranche or Subclass of Notes with an earlier anticipated repayment date or legal final maturity date than another then-outstanding Class, Tranche or Subclass of Notes, in which case such new anticipated repayment date and/or legal final maturity date will not be prior to the Class, Tranche or Subclass of Notes then being refinanced or (y) such new Notes are Class A-1 Notes;
(H) an Officer’s Certificate, executed by an Authorized Officer of the each Co-Issuer, dated as of the applicable Series Closing Date, certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Additional Notes provided in the this Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement agreements executed in connection with the issuance of such Additional Notes have been satisfied or waived;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Additional Notes;
(3) each of the parties to the Transaction Documents with respect to such Additional Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in the case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(4) all representations and warranties of the Issuer Co-Issuers in this Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date in all material respects);
(I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of NotesNotes in accordance with the terms of the Indenture, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control Party;
(J) all costs, fees and expenses with respect to the issuance of such Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date have been paid or will be paid from the proceeds of the issuance of such Additional Notes; and
(K) if such Additional Notes include Subordinated Debt, the terms of such Additional Notes include the Subordinated Debt Provisions to the extent applicable;
(iv) a Tax Opinion, dated the applicable Series Closing Date; provided that, if there are no Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from the proceeds of the issuance of such Additional Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be required to be given in connection with the issuance of such Additional Notes;
(v) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such Additional Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer Co-Issuers and constitute a legal, valid and binding agreement of the IssuerCo-Issuers, enforceable against the Issuer Co-Issuers in accordance with its terms;
(C) such Additional Notes have been duly authorized by the IssuerCo-Issuers, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Additional Notes will be legal, valid and binding obligations of the IssuerCo-Issuers, enforceable against the Issuer Co-Issuers in accordance with their terms;
(D) none of the Securitization Entities is required to be registered under the Investment Company Act within the meaning of Section 3(a)(1) thereof;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Notes;
(F) based on a reasoned analysis, the assets and liabilities of each Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBCParent;
(G) neither the execution and delivery by the each Co-Issuer of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Additional Notes are issued if applicable) nor the performance by the each Co-Issuer of its obligations under such Additional Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) conflicts with the Charter Documents of the such Co-Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the such Co-Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the such Co-Issuer (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer Co-Issuers of such Additional Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Additional Notes are issued if applicable) nor the performance by the Issuer Co-Issuers of its their payment obligations under such Additional Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) violates any applicable law, rule or regulation of any relevant jurisdiction or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority Governmental Authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding or investigation pending or threatened against TBC Parent or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Additional Notes are being offered pursuant to a registration statement that has been declared effective under the Securities Act, it is not necessary in connection with the offer and sale of such Additional Notes by the Issuer Co-Issuers to the initial purchasers thereof or by the initial purchasers to the initial investors in such Additional Notes to register such Notes under the Securities Act; and
(K) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the each Co-Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the such Co-Issuer and constitutes a legal, valid and binding agreement of the such Co-Issuer, enforceable against the such Co-Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viii) such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.
(c) Upon satisfaction, or waiver (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be in writing) (as directed by the Controlling Class Representative), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes)deliver, as provided above, such Additional Notes upon execution thereof by the IssuerCo-Issuers.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
Appears in 1 contract
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment a Supplement to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of the certifications described in clauses clause (iii)(H) and (viiv) below (if applicable) are true and correct as of the related applicable Series Closing Date, the Notes may from time to be issued may time be executed by the Issuer and delivered to the Trustee for authentication and thereupon thereupon, subject to Section 2.2(c), the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes being issued on the Original Closing Date and other than or in connection with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable a Series SupplementRefinancing Event) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer upon notice to the Trustee no later than 5:00 p.m. (New York City time) two five (25) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the such Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment a Supplement to the related Series Supplement for Additional Notes of issued under an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) if any existing Notes shall remain Outstanding following such issuance of such Notes (other than in the case of any new connection with a Series of Refinancing Event or such existing Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) that will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes;
(B) ), written confirmation from either the Manager or the Issuer that the Rating Agency Condition with respect to the issuance of such Notes has been satisfied;
(Civ) in the case of Additional Notes, if any existing Notes shall remain Outstanding following such issuance of such Additional Notes (other than in connection with a Series Refinancing Event or such existing Notes that will be repaid in full from the proceeds of the issuance of such Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date), one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) no Cash Flow Sweeping Period is in effect;
(B) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the such issuance of such Additional Notes;
(DC) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notesissuance;
(ED) subject to Section 5.16, the Additional Notes DSCR FAT Brands Leverage Ratio is greater less than or equal to 2.00:1.00, in each case 7.00x after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof Additional Notes and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(FE) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case 6.50x after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof Additional Notes and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(F) the New Series Pro Forma DSCR is greater than or equal to 1.75x;
(G) the if there is one or more Series Legal Final Maturity Date of any new Class of Notes will not be prior to the Outstanding (other than a Series Legal Final Maturity Date of any Class of Notes then Outstanding;
(H) an Officer’s Certificate, executed by an Authorized Officer Outstanding that will be repaid in full from the proceeds of issuance of the Issuer, dated as new Series of Notes or otherwise on the applicable Series Closing Date), certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent Rating Agency Condition with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Additional Notes have been satisfied or waivedis satisfied;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes;
(3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(41) all representations and warranties of the Issuer in this the Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date), which representation and warranty shall remain true (2) (x) neither the execution and correct as delivery by the Issuer of such earlier date Notes and the Supplement nor the performance by the Issuer of its obligations under each of the Notes and the Supplement: (A) conflicts with the Charter Documents of the Issuer; (B) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party; or (C) contravenes any order or decree that is applicable to the Issuer; and (y) there is no action, proceeding, or investigation pending or threatened in all material respects)writing against FAT Brands or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without thereto, except for (i) increases in the aggregate Outstanding Principal Amount of any existing Series, Class, Subclass or Tranche of Notes and (ii) such changes that are permitted in accordance with the terms hereunder and the applicable Series Supplement, in each case, if such Additional Notes are issued thereunder, and all consents as are required under this Base Indenture or and the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control Partyin connection with such proposed issuance have been granted;
(J) all costs, fees and expenses with respect to the issuance of such Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date (or issuance date with respect to Additional Notes of an existing Series, Class, Subclass or Tranche) have been paid or will be paid from the proceeds of issuance of such Additional Notes or other available amounts;
(K) all conditions precedent with respect to the authentication and delivery of such Additional Notes provided in this Base Indenture, the related Series Supplement and any related note purchase agreement executed in connection with the issuance of such Notes; and
(K) if such Additional Notes include Subordinated Debt, the terms of such Notes include the Subordinated Debt Provisions to the extent applicablehave been satisfied or waived;
(L) the Series Legal Final Maturity Date for any Additional Notes will not be prior to the Series Legal Final Maturity Date of any Class of Senior Notes then Outstanding;
(M) each of the parties to the Transaction Documents with respect to such Additional Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is one year and one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, that none of the foregoing conditions shall apply and no Officer’s Certificates shall be required under this clause (iv) if there are no Series of Notes Outstanding (apart from the new Series of Notes) on the applicable Series Closing Date, or if all Series of Notes Outstanding (apart from the new Series of Notes) will be repaid in full from the proceeds of the issuance of the new Series of Notes or otherwise on the applicable Series Closing Date;
(v) a Tax Opinion, Opinion dated the applicable Series Closing Date; provided provided, however, that, if there are no Notes Outstanding or if all Series of Notes Outstanding (apart from the new Series of Notes) will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be Opinion are required to be given in connection with the issuance of such new Series of Notes;
(vvi) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such the Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer and constitute constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms;
(C) such Notes have been duly authorized by the Issuer, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(D) none of the Securitization Entities is required to be registered as an “investment company” under the Investment Company Act within the meaning of Section 3(a)(1) thereof1940 Act;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral are validly created and remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such NotesIndenture;
(F) based on a reasoned analysis, the assets and liabilities of each a Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBCFAT Brands or the Manager in a manner prejudicial to Noteholders;
(G) neither the execution and delivery by the Issuer of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its obligations under such each of the Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing SeriesSupplement, Class, Subclass or Tranche of Notes are issued if applicable) (i) conflicts with the Charter Documents of the Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the Issuer (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) nor the performance by the Issuer of its their payment obligations under each of such Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) Supplement: (i) violates any applicable law, rule or regulation of any relevant jurisdiction jurisdiction, or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding or investigation pending or threatened against TBC or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities 1933 Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer to the initial purchasers purchaser(s) thereof or by the initial purchasers purchaser(s) to the initial investors in such Notes to register such Notes under the Securities 1933 Act; and
(KJ) all conditions precedent to such issuance have been satisfied and that the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viiivii) such other documents, instruments, certifications, agreements or other items as the Trustee or the Control Party may reasonably require.
(c) Upon satisfaction, or waiver receipt of written notice from the Control Party (as directed by the Controlling Class RepresentativeRepresentative in writing, if a Controlling Class Representative has been appointed) confirming satisfaction, or written waiver by the Control Party (which waiver shall be as directed by the Controlling Class Representative in writing, if a Controlling Class Representative has been appointed), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes)deliver, as provided above, such Notes upon execution thereof by the Issuer and the Trustee’s receipt of a Company Request in accordance with, and subject to, Section 2.2(b); provided that, with respect to the Notes issued on the Closing Date, written notice from the Control Party shall not be necessary and the Issuer’s delivery of the executed Notes shall be deemed to be confirmation of the satisfaction of the conditions set forth in Section 2.2(b). Notwithstanding anything contained herein or in any Supplement to the contrary, the Trustee shall be entitled to conclusively rely on, and shall be fully protected in so relying on, such written notice from the Control Party (or in the case of the Notes issued on the Closing Date, the Issuer’s delivery of the executed Notes) and shall in no event be required to make inquiry or investigation as to whether the conditions set forth in Section 2.2(b) have been satisfied or waived. The closing of any issuance of Notes may (but shall not be required to) be effected through an escrow arrangement on terms acceptable to the Trustee, the Control Party and Issuer.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the Issuer may only use the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided provided, that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the Issuer may only use the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
Appears in 1 contract
Samples: Base Indenture (Fat Brands, Inc)
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment a Supplement to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of the certifications described in clauses clause (iii)(H) and (viiv) below (if applicable) are true and correct as of the related applicable Series Closing Date, the Notes may from time to be issued may time be executed by the Issuer Co-Issuers and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes being issued on the Original Closing Amendment Date and other than or in connection with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable a Series SupplementRefinancing Event) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer Co-Issuers upon notice to the Trustee no later than 5:00 p.m. (New York City time) two (2) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer Co-Issuers to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the such Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment a Supplement to the related Series Supplement for Additional Notes of issued under an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer Co-Issuers and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) if any existing Notes shall remain Outstanding following such issuance of such Notes (other than in the case of any new connection with a Series of Refinancing Event or such existing Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) that will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes;
(B) ), written confirmation from either the Manager or the Issuer Co-Issuers that the Rating Agency Condition with respect to the issuance of such Notes has been satisfied;
(Civ) in the case of Additional Notes, if any existing Notes shall remain Outstanding following such issuance of such Additional Notes (other than in connection with a Series Refinancing Event or such existing Notes that will be repaid in full from the proceeds of the issuance of such Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date), one or more Officer’s Certificates, each executed by an Authorized Officer of each Co-Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) (x) prior to the Springing Amendments Implementation Date, no Cash Flow Sweeping Period and (y) on and after the Springing Amendments Implementation Date, no Cash Trapping Period is in effect, in each case, or will commence as a result of the issuance of the Additional Notes;
(B) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the such issuance of such Additional Notes;
(DC) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notesissuance;
(ED) subject to Section 5.16, the Additional Notes DSCR Dine Brands Leverage Ratio is greater less than or equal to 2.00:1.00, in each case 7.00x after giving pro forma effect to the issuance of such Additional Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(FE) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case 6.50x after giving pro forma effect to the issuance of such Additional Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such NotesAdditional Notes and the other uses of the proceeds thereof;
(F) the New Series Pro Forma DSCR for such series of Additional Notes is greater than or equal to 2.00x;
(G) the if there is one or more Series Legal Final Maturity Date of any new Class of Notes will not be prior to the Outstanding (other than a Series Legal Final Maturity Date of any Class of Notes then Outstanding;
(H) an Officer’s Certificate, executed by an Authorized Officer Outstanding that will be repaid in full from the proceeds of issuance of the Issuer, dated as new Series of Notes or otherwise on the applicable Series Closing Date), certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent Rating Agency Condition with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Additional Notes have been satisfied or waivedis satisfied;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes;
(3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(4H) all representations and warranties of the Issuer Co-Issuers in this Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date in all material respects);
(I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to Supplement, except for (i) increases in the Trustee aggregate Outstanding Principal Amount of any existing Series, Class, Subclass or Tranche of Notes and (ii) such changes that are permitted in accordance with the terms hereunder and the Control Partyapplicable Series Supplement, in each case, if such Additional Notes are issued thereunder;
(J) all costs, fees and expenses with respect to the issuance of such Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date (or issuance date with respect to Additional Notes of an existing Series, Class, Subclass or Tranche) have been paid or will be paid from the proceeds of issuance of such Additional Notes or other available amounts;
(K) all conditions precedent with respect to the authentication and delivery (or registration, in the case of Uncertificated Notes) of such Additional Notes provided in this Base Indenture, the related Series Supplement and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Notes; andAdditional Notes have been satisfied or waived;
(KL) the Guarantee and Collateral Agreement is in full force and effect as to such Additional Notes;
(M) if such Additional Notes include Subordinated Debt, the terms of any such Additional Notes set forth in the applicable Supplement include the Subordinated Debt Provisions to the extent applicable;
(N) the Series Legal Final Maturity Date for any new Additional Notes will not be prior to the Series Legal Final Maturity Date of any Class of Senior Notes then Outstanding;
(O) a Company Order authorizing and directing the authentication and delivery (or registration in the case of Uncertificated Notes) of such Additional Notes by the Trustee and specifying the designation of such Additional Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of such Additional Notes to be authenticated (or registered, in the case of Uncertificated Notes) and the Note Rate with respect to such Additional Notes;
(P) each of the parties to the Transaction Documents with respect to such Additional Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is one year and one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, that none of the foregoing conditions shall apply and no Officer’s Certificates shall be required under this clause (iv) if there are no Series of Notes Outstanding (apart from the new Series of Notes) on the applicable Series Closing Date, or if all Series of Notes Outstanding (apart from the new Series of Notes) will be repaid in full from the proceeds of the issuance of the new Series of Notes or otherwise on the applicable Series Closing Date;
(v) a Tax Opinion, Opinion dated the applicable Series Closing Date; provided that, if there are no Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be Opinion are required to be given in connection with the issuance of such new Series of Notes;
(vvi) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such the Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Initial Closing Date);
(B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer Co-Issuers and constitute constitutes a legal, valid and binding agreement of each of the IssuerCo-Issuers, enforceable against each of the Issuer Co-Issuers in accordance with its terms;
(C) such Notes have been duly authorized by the IssuerCo-Issuers, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Notes will be legal, valid and binding obligations of each of the IssuerCo-Issuers, enforceable against each of the Issuer Co-Issuers in accordance with their terms;
(D) none of the Securitization Entities is required to be registered as an “investment company” under the Investment Company Act within the meaning of Section 3(a)(1) thereof1940 Act;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, Agreement and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Notes;
(F) based on a reasoned analysis, the assets and liabilities of each a Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBCDine Brands Global, Inc. or the Manager in a manner prejudicial to Noteholders;
(G) neither the execution and delivery by the Issuer Co-Issuers of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer Co-Issuers of its obligations under such each of the Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) Supplement: (i) conflicts with the Charter Documents of the IssuerCo-Issuers, (ii) constitutes a violation of, or a default under, any material agreement to which any of the Issuer Co-Issuers is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to any of the Issuer Co-Issuers (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer Co-Issuers of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) nor the performance by the Issuer Co-Issuers of its their payment obligations under each of such Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) Supplement: (i) violates any applicable law, rule or regulation of any relevant jurisdiction jurisdiction, or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding proceeding, or investigation pending or threatened against TBC Dine Brands Global, Inc. or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities 1933 Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer Co-Issuers to the initial purchasers purchaser(s) thereof or by the initial purchasers purchaser(s) to the initial investors in such Notes to register such Notes under the Securities 1933 Act; and
(K) all conditions precedent to such issuance have been satisfied and that the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viiivii) such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.
(c) Upon satisfaction, or written waiver by the Control Party (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be Representative in writing), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes)deliver, as provided above, such Notes upon execution thereof by the IssuerCo-Issuers.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new The issuance of any additional Series of Class A-1 Notes or will require the consent of the Class A-1 Administrative Agents of any existing Series of Class A-1 Notes that will remain Outstanding. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
Appears in 1 contract
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more Classes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. .
(b) Notes of a new Series or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant Series may from time to an amendment to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of the certifications described in clauses (iii)(H) and (vi) below are true and correct as of the related Series Closing Date, the Notes to be issued may time be executed by the Issuer Issuers and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request Order and upon performance or delivery by the Issuers to the Trustee and the Control Party, and receipt by the Trustee and the Control Party on or before the applicable Series Closing Date, of the following:
(which, for the avoidance of doubt, may be the same as the i) a Company Order provided pursuant to in Section 2.2(b)(i) below) at least five three (53) Business Days (except in the case of the issuance of the first Series of Notes on the Original Closing Date and other than with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable Series SupplementDate) in advance of the related Series Closing Date (which Company Request Order will be revocable by the Issuer Issuers upon notice to the Trustee no later than 5:00 p.m. (New York City time) two one (21) Business Days Day prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control Party), and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such the Notes by the Trustee and specifying specifying, if applicable, the designation of such Notes, new Series of Notes and the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the such Notes to be authenticated (or registered in the case of uncertificated notes)and, if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment to the related Series Supplement for Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer Issuers and the Trustee and specifying specifying, to the extent applicable, the Principal Terms of such new Series of Notes or Additional Notes;
(iii) in the case of any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more an existing Series of Notes Outstanding (apart from such new other than a Series of Notes Outstanding that will be repaid or defeased in full in accordance with Section 12.1(c) from the proceeds of issuance of the Additional Notes or otherwise), each Rating Agency has provided a Rating Agency Confirmation and each Rating Agency has rated the Additional Notes no lower than the lower of (x) the then-current credit rating assigned by such Rating Agency or (y) the initial credit rating assigned by such Rating Agency (in each case, without negative implications) to each Outstanding Series of Notes ranking on the same priority as the Additional Notes;
(iv) on if there is an existing Series of Notes Outstanding (other than a Series of Notes Outstanding that will be repaid or defeased in full in accordance with Section 12.1(c) from the proceeds of issuance of the Additional Notes or otherwise), one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuers, dated as of the applicable Series Closing Date to the effect that:
(unless A) the Aggregate Outstanding Principal Amount of all Notes as of the applicable Series Closing Date on a pro forma basis after giving effect to the issuance of such Additional Notes and the application of proceeds therefrom shall be equal to not more than the Maximum Program Amount; provided that the issuance of Additional Notes in excess of the Maximum Program Amount may be permitted subject to (i) the Issuers or the Manager obtaining a new valuation by an Approved Valuation Firm indicating that the Aggregate Outstanding Principal Amount of all Notes as of the applicable Series Closing Date on a pro forma basis after giving effect to the proposed issuance of such Additional Notes and the application of proceeds therefrom will not exceed 42.81% of the fair market value of the Spectrum Portfolio (determined by way of substantially the same methodology used to determine such fair market value on or prior to the Closing Date) as of the applicable Series Closing Date; and (ii) the consent of the Control Party (acting at the direction of the Controlling Class Representative);
(B) the Series Anticipated Repayment Date of such Additional Notes (if a new Series of Notes is being issued) is on or after the latest maturity of all of the then-Outstanding Notes (other than a Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) that will be repaid or defeased in full from the proceeds of the issuance of such the new Series of Notes or Additional Notes or otherwise on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes;
(B) written confirmation from either the Manager or the Issuer that the Rating Agency Condition with respect to the issuance of such Notes has been satisfiedotherwise);
(C) no Potential Rapid Amortization Event, Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the issuance of such the Additional Notes;
(D) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notes;
(E) subject to Section 5.16, the Additional Notes DSCR is greater than or equal to 2.00:1.00, in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes;
(F) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes;
(G) the Series Legal Final Maturity Date of any new Class of Notes will not be prior to the Series Legal Final Maturity Date of any Class of Notes then Outstanding;
(H) an Officer’s Certificate, executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date, certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Notes have been satisfied or waived;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes;
(3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(4) all representations and warranties of the Issuer Issuers in this Base Indenture and the other Transaction Documents are true and correctcorrect in all material respects, and will continue to be true and correct in all material respects after giving effect to such issuance on the Series Closing Date, in all material respects of Additional Notes (other than any representation or warranty that, by its terms, is made only as of an earlier date, which representation ) after giving effect to the issuance of the Notes and warranty shall remain true and correct as the application of such earlier date in all material respects)proceeds thereof;
(IE) other than increases in the aggregate principal amount of an existing Series, Class, Subclass no Manager Termination Event or Tranche of Notes in connection with the issuance of Additional Notes Potential Manager Termination Event has occurred and is continuing or will occur as a result of such existing Series, Class, Subclass or Tranche of Notes, issuance;
(F) the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control PartySupplement;
(JG) all costs, fees and expenses with respect to the issuance of such the Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on at the applicable Series Closing Date time of issuance have been paid or will be paid from the proceeds of the issuance of such Notes; and
(K) if such Notes include Subordinated Debt, the terms of such Notes include the Subordinated Debt Provisions to the extent applicable;
(iv) a Tax Opinion, dated the applicable Series Closing Date; provided that, if there are no Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be required to be given in connection with the issuance of such Additional Notes;
(vH) one or more Opinions of Counsel, subject all conditions precedent with respect to the assumptions authentication and qualifications stated therein, and delivery of such Additional Notes provided in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such Notes are permitted to be authenticated (have been satisfied or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date)waived;
(BI) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer and constitute a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms;
(C) such Notes have been duly authorized by the Issuer, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(D) none of the Securitization Entities is required to be registered under the Investment Company Act within the meaning of Section 3(a)(1) thereof;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected is in full force and effect as required by this Base Indenture and the Guarantee and Collateral Agreement, and to such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Additional Notes;
(FJ) based on a reasoned analysis, each of the assets parties to the Transaction Documents with respect to such Additional Notes has covenanted and liabilities of each Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBC;
(G) neither the execution and delivery by the Issuer of such Notes (or registered agreed in the case of Uncertificated NotesTransaction Documents that (x) and except as otherwise provided in the Series Supplement (or amendment Transaction Documents, it will not exercise any legal remedies against the Securitization Entities with respect to the Series Supplement pursuant to which Additional Notes relevant Transaction Document(s), including for breach of an existing Seriescovenants, Classrepresentations, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its warranties, agreements, undertakings and any other obligations under such Notes and the Series Supplement Transaction Document, provided that this clause (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicableJ)(x) (i) conflicts with the Charter Documents does not apply to claims or suits against third parties (“Applicable Third Parties”) acting for or on behalf of the IssuerSecuritization Entities, and does not prohibit any counterparty from bringing any counterclaim, exercising any rights or taking any other action in connection with a claim made or action brought by or on behalf of the Securitization Entities (or by any Applicable Third Party) against such party or from exercising equitable remedies against a Securitization Entity and (ii) constitutes a violation ofshall restrict such parties from taking action only against the Securitization Entities, and (y), prior to the date which is one year (or, if longer, the applicable preference period then in effect) and one day after the payment in full in cash of all outstanding obligations to pay interest, principal and any other amounts due at maturity or earlier redemption and all other Obligations in respect of the latest maturing Note, it will not initiate against, or a default underjoin any Person in initiating against, the Securitization Entities, any material agreement to which the Issuer is a party bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any applicable federal or state bankruptcy or similar law (which agreements may be set forth in a schedule to such opinioncollectively, an “Insolvency Proceeding”), or (iii) contravenes any order or decree that is applicable . Notwithstanding anything to the Issuer contrary in this Indenture, this clause (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) nor the performance by the Issuer of its payment obligations under such Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicableJ)(y) (i) violates does not prohibit or limit such parties to the Transaction Documents from proving any applicable lawclaim, rule exercising any rights or regulation taking any other action in connection with any Insolvency Proceeding initiated by or against the Securitization Entities not in breach of any relevant jurisdiction or this paragraph and (ii) requires shall restrict such Parties to the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already madeTransaction Documents from taking action only against the Securitization Entities;
(IK) there is no action, proceeding proceeding, or investigation pending or threatened against TBC or any of its Subsidiaries Non-Securitization Entity before any court or administrative agency that may would reasonably be expected to have result in a Material Adverse Effect on the business or assets of with respect to the Securitization Entities;
(JL) unless such Notes are being offered pursuant to Additional Notes, if of a registration statement that has been declared effective under the Securities Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer to the initial purchasers thereof or by the initial purchasers to the initial investors in such Notes to register such Notes under the Securities Act; and
(K) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing new Series, Classdo not rank senior or prior to, Subclass or Tranche of Notes are issued if applicable) is authorized junior or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first second to, any Series of Notes on the Original Closing DateOutstanding (whether structurally, contractually or otherwise);
(viM) one the Additional Notes Pro Forma DSCR shall be greater than or more Officer’s Certificatesequal to 1.01x; where “Additional Notes Pro Forma DSCR” means, each executed as of any proposed Series Closing Date, the ratio equal to (a) Lease Payments made during the immediately preceding Quarterly Collection Period, over (b) the maximum sum (determined in good faith by an Authorized Officer the Issuers) in any Quarterly Collection Period after the date of issuance of such Additional Notes and prior to the Legal Final Maturity Date of such Additional Notes of (1) Debt Service, (2) the Securitization Operating Expenses, (3) Spectrum Portfolio Maintenance Expenses, (4) the Management Fee, (5) the Back-Up Management Fee and (6) commitment fees in respect of any LC Facility; where “Debt Service” means the aggregate sum due and payable on any Quarterly Payment Date in respect of the IssuerClass A Notes and any proposed Additional Notes prior to the Legal Final Maturity Date of any proposed Additional Notes of (a) the Class A Notes Quarterly Interest Amount, dated plus with respect to the proposed issuance of Additional Notes, the additional Quarterly Interest Amount that would be due and payable on any Quarterly Payment Date in respect of any proposed Additional Notes prior to the Series Legal Final Maturity Date of such Additional Notes, as of if such Additional Notes were outstanding from and after the proposed Series Closing Date, plus (b) with respect to Class A Notes Outstanding, the Scheduled Principal Payment due and payable on any Quarterly Payment Date prior to the latest legal final maturity date set forth in the applicable Series Closing Date Supplement (as ratably reduced by the aggregate amount of any prior payments of Repurchase Amounts, repurchases and cancellations of Class A Notes, and optional prepayments of principal of such Series of Notes), plus (c) with respect to the effect that:
(A) proposed issuance of Additional Notes, the related Series Supplement (or the amendment Scheduled Principal Payment that would be due and payable on any Quarterly Payment Date in respect of such Additional Notes prior to the Series Supplement pursuant to which Legal Final Maturity Date of such Additional Notes, as if such Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed were outstanding from and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viii) such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.
(c) Upon satisfaction, or waiver (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be in writing), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes), as provided above, such Notes upon execution thereof by the Issuer.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided that at any time on or after the proposed Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.Closing Date;
Appears in 1 contract
Samples: Base Indenture (SPRINT Corp)
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment a Supplement to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of the certifications described in clauses clause (iii)(H) and (viiv) below (if applicable) are true and correct as of the related applicable Series Closing Date, the Notes may from time to be issued may time be executed by the Issuer and delivered to the Trustee for authentication and thereupon thereupon, subject to Section 2.2(c), the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes being issued on the Original Closing Date and other than or in connection with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable a Series SupplementRefinancing Event) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer upon notice to the Trustee no later than 5:00 p.m. (New York City time) two five (25) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the such Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment a Supplement to the related Series Supplement for Additional Notes of issued under an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) in the case of any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notesthat is rated by a Rating Agency, if there is one any existing Notes shall remain Outstanding following such issuance of such Notes (other than in connection with a Series Refinancing Event or more Series of such existing Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) that will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes;
(B) ), written confirmation from either the Manager or the Issuer that the Rating Agency Condition with respect to the issuance of such Notes has been satisfied;
(Civ) in the case of Additional Notes, if any existing Notes shall remain Outstanding following such issuance of such Additional Notes (other than in connection with a Series Refinancing Event or such existing Notes that will be repaid in full from the proceeds of the issuance of such Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date), one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) no Cash Flow Sweeping Period is in effect;
(B) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the such issuance of such Additional Notes;
(DC) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notesissuance;
(ED) subject to Section 5.16, the Additional Notes DSCR FAT Brands Leverage Ratio is greater less than or equal to 2.00:1.00, in each case 7.00x after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof Additional Notes and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(FE) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case 5.50x after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof Additional Notes and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(F) the New Series Pro Forma DSCR is greater than 2.00x;
(G) in the Series Legal Final Maturity Date case of any new Class Series of Notes will not be prior to the that is rated by a Rating Agency, if there is one or more Series Legal Final Maturity Date of any Class of Notes then Outstanding;
Outstanding (H) an Officer’s Certificate, executed by an Authorized Officer other than a Series of Notes Outstanding that will be repaid in full from the proceeds of issuance of the Issuer, dated as new Series of Notes or otherwise on the applicable Series Closing Date), certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent Rating Agency Condition with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Additional Notes have been satisfied or waivedis satisfied;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes;
(3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(41) all representations and warranties of the Issuer in this the Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date), which representation and warranty shall remain true (2) (x) neither the execution and correct as delivery by the Issuer of such earlier date Notes and the Supplement nor the performance by the Issuer of its obligations under each of the Notes and the Supplement: (A) conflicts with the Charter Documents of the Issuer; (B) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party; or (C) contravenes any order or decree that is applicable to the Issuer; and (y) there is no action, proceeding, or investigation pending or threatened in all material respects)writing against FAT Brands or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without thereto, except for (i) increases in the aggregate Outstanding Principal Amount of any existing Series, Class, Subclass or Tranche of Notes and (ii) such changes that are permitted in accordance with the terms hereunder and the applicable Series Supplement, in each case, if such Additional Notes are issued thereunder, and all consents as are required under this Base Indenture or and the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control Partyin connection with such proposed issuance have been granted;
(J) all costs, fees and expenses with respect to the issuance of such Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date (or issuance date with respect to Additional Notes of an existing Series, Class, Subclass or Tranche) have been paid or will be paid from the proceeds of issuance of such Additional Notes or other available amounts;
(K) all conditions precedent with respect to the authentication and delivery of such Additional Notes provided in this Base Indenture, the related Series Supplement and related note purchase agreement executed in connection with the issuance of such Notes; andAdditional Notes have been satisfied or waived;
(KL) the Guarantee and Collateral Agreement is in full force and effect as to such Additional Notes;
(M) if such Additional Notes include Subordinated Debtsubordinated debt, the terms of any such Additional Notes set forth in the applicable Supplement include the Subordinated Debt Provisions subordinated debt provisions to the extent applicable;
(N) the Series Legal Final Maturity Date for any Additional Notes will not be prior to the Series Legal Final Maturity Date of any Class of Senior Notes then Outstanding;
(O) each of the parties to the Transaction Documents with respect to such Additional Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is one year and one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, that none of the foregoing conditions shall apply and no Officer’s Certificates shall be required under this clause (iv) if there are no Series of Notes Outstanding (apart from the new Series of Notes) on the applicable Series Closing Date, or if all Series of Notes Outstanding (apart from the new Series of Notes) will be repaid in full from the proceeds of the issuance of the new Series of Notes or otherwise on the applicable Series Closing Date;
(v) a Tax Opinion, Opinion dated the applicable Series Closing DateDate for the Senior Notes and the Senior Subordinated Notes; provided, however, that a Tax Opinion will be provided for the Subordinated Notes upon request from the majority of Subordinated Noteholders, provided further, however, that, if there are no Notes Outstanding or if all Series of Notes Outstanding (apart from the new Series of Notes) will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be Opinion are required to be given in connection with the issuance of such new Series of Notes;
(vvi) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such the Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer and constitute constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms;
(C) such Notes have been duly authorized by the Issuer, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(D) none of the Securitization Entities is required to be registered as an “investment company” under the Investment Company Act within the meaning of Section 3(a)(1) thereof1940 Act;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, Agreement and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Notes;
(F) based on a reasoned analysis, the assets and liabilities of each a Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBCFAT Brands or the Manager in a manner prejudicial to Noteholders;
(G) neither the execution and delivery by the Issuer of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its obligations under such each of the Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing SeriesSupplement, Class, Subclass or Tranche of Notes are issued if applicable) (i) conflicts with the Charter Documents of the Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the Issuer (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) nor the performance by the Issuer of its their payment obligations under each of such Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) Supplement: (i) violates any applicable law, rule or regulation of any relevant jurisdiction jurisdiction, or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding or investigation pending or threatened against TBC or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities 1933 Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer to the initial purchasers purchaser(s) thereof or by the initial purchasers purchaser(s) to the initial investors in such Notes to register such Notes under the Securities 1933 Act; and
(KJ) all conditions precedent to such issuance have been satisfied and that the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viiivii) such other documents, instruments, certifications, agreements or other items as the Trustee or the Control Party may reasonably require.
(c) Upon satisfaction, or waiver receipt of written notice from the Control Party (as directed by the Controlling Class RepresentativeRepresentative in writing, if a Controlling Class Representative has been appointed) confirming satisfaction, or written waiver by the Control Party (which waiver shall be as directed by the Controlling Class Representative in writing, if a Controlling Class Representative has been appointed), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes)deliver, as provided above, such Notes upon execution thereof by the Issuer and the Trustee’s receipt of a Company Request in accordance with, and subject to, Section 2.2(b); provided that, with respect to the Notes issued on the Closing Date, written notice from the Control Party shall not be necessary and the Issuer’s delivery of the executed Notes shall be deemed to be confirmation of the satisfaction of the conditions set forth in Section 2.2(b). Notwithstanding anything contained herein or in any Supplement to the contrary, the Trustee shall be entitled to conclusively rely on, and shall be fully protected in so relying on, such written notice from the Control Party (or in the case of the Notes issued on the Closing Date, the Issuer’s delivery of the executed Notes) and shall in no event be required to make inquiry or investigation as to whether the conditions set forth in Section 2.2(b) have been satisfied or waived. The closing of any issuance of Notes may (but shall not be required to) be effected through an escrow arrangement on terms acceptable to the Trustee, the Control Party and Issuer.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the Issuer may only use the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided provided, that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the Issuer may only use the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
Appears in 1 contract
Samples: Base Indenture (Fat Brands, Inc)
Notes Issuable in Series. (a) The Notes shall be issued in one or more as a single Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, any Class, Subclass or Tranche of such Notes. Each The Series of Notes shall be issued pursuant to a Series Supplement. Additional For the avoidance of doubt, the Series 2024-1 Notes of an existing Series, Class, Subclass or Tranche will be the only Series of Notes shall to be issued by the Issuer pursuant to an amendment to this Base Indenture or the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of In accordance with the certifications described in clauses (iii)(H) and (vi) below are true and correct as of the related Series Closing DateSupplement, the Notes may from time to be issued may time be executed by the Issuer and delivered to the Trustee for authentication and thereupon thereupon, subject to Section 2.2(c), the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes on the Original Closing Date and other than with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable Series Supplement) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer upon notice to the Trustee no later than 5:00 p.m. (New York City time) two (2) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing (A) the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the such Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes and (if anyB) the use of proceeds to repay all existing Indebtedness of the Issuer under the Base Indenture, dated as of October 1, 2021, between the Issuer and UMB Bank, N.A, and each of the series supplements executed thereunder (the “Previous Indenture”);
(ii) a the Series Supplement for a new Series of such Notes or an amendment to the related Series Supplement for Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) in the case of any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or otherwise on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes;
(B) written confirmation from either the Manager or the Issuer that the Rating Agency Condition with respect to the issuance of such Notes has been satisfied;
(C) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the issuance of such Notes;
(D) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notes;
(E) subject to Section 5.16, the Additional Notes DSCR is greater than or equal to 2.00:1.00, in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes;
(F) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes;
(G) the Series Legal Final Maturity Date of any new Class of Notes will not be prior to the Series Legal Final Maturity Date of any Class of Notes then Outstanding;
(H) an Officer’s Certificate, executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date, certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Notes have been satisfied or waived;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes;
(3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(4) all representations and warranties of the Issuer in this Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date in all material respects);
(I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control Party;
(J) all costs, fees and expenses with respect to the issuance of such Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date have been paid or will be paid from the proceeds of the issuance of such Notes; and
(K) if such Notes include Subordinated Debt, the terms of such Notes include the Subordinated Debt Provisions to the extent applicable[reserved];
(iv) a Tax Opinion, Opinion dated the applicable Series Closing Date; provided thatDate for the Super Senior Notes, if there are no the Senior Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from and the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be required to be given in connection with the issuance of such Senior Subordinated Notes;
(v) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such the Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer and constitute constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms;
(C) such Notes have been duly authorized by the Issuer, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(D) none of the Securitization Entities is required to be registered as an “investment company” under the Investment Company Act within the meaning of Section 3(a)(1) thereof1940 Act;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, Agreement and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Notes;
(F) based on a reasoned analysis, the assets and liabilities of each a Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBCFAT Brands or the Manager in a manner prejudicial to Noteholders;
(G) neither the execution and delivery by the Issuer of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its obligations under such each of the Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing SeriesSupplement, Class, Subclass or Tranche of Notes are issued if applicable) (i) conflicts with the Charter Documents of the Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the Issuer (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) nor the performance by the Issuer of its their payment obligations under each of such Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) Supplement: (i) violates any applicable law, rule or regulation of any relevant jurisdiction jurisdiction, or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding or investigation pending or threatened against TBC or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities 1933 Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer to the initial purchasers purchaser(s) thereof or by the initial purchasers purchaser(s) to the initial investors in such Notes to register such Notes under the Securities 1933 Act; and
(KJ) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to that the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viiivi) such other documents, instruments, certifications, agreements or other items as the Trustee or the Control Party may reasonably require.
(c) Upon satisfactionreceipt of a Company Order in accordance with, or waiver (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be in writing)and subject to, of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes)deliver, as provided above, such Notes upon execution thereof by the Issuer.
(d) With regard . Notwithstanding anything contained herein or in any Supplement to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2the contrary, the proceeds from such issuance may only Trustee shall be used entitled to repay (iconclusively rely on, and shall be fully protected in so relying on, the Issuer’s delivery of the executed Notes as evidence that the conditions set forth in Section 2.2(b) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid satisfied and (iithe Trustee shall in no event be required to make inquiry or investigation as to whether the conditions set forth in Section 2.2(b) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided that at any time on satisfied or after the Series Anticipated Repayment Date for any Series waived. The closing of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes but shall not be subject required to) be effected through an escrow arrangement on terms acceptable to the consent of Trustee, the Holders of any Series of Notes Outstanding. A new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization EntitiesControl Party and Issuer.
Appears in 1 contract
Samples: Base Indenture (Fat Brands, Inc)
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment a Supplement to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of the certifications described in clauses clause (iii)(H) and (viiv) below (if applicable) are true and correct as of the related applicable Series Closing Date, the Notes may from time to be issued may time be executed by the Issuer and delivered to the Trustee for authentication and thereupon thereupon, subject to Section 2.2(c), the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes being issued on the Original Closing Date and other than or in connection with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable a Series SupplementRefinancing Event) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer upon notice to the Trustee no later than 5:00 p.m. (New York City time) two five (25) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control PartyTrustee, and receipt by the Trustee and the Control PartyControlling Class Representative, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the such Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment a Supplement to the related Series Supplement for Additional Notes of issued under an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) in the case of any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notesthat is rated by a Rating Agency, if there is one any existing Notes shall remain Outstanding following such issuance of such Notes (other than in connection with a Series Refinancing Event or more Series of such existing Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) that will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes;
(B) ), written confirmation from either the Manager or the Issuer that the Rating Agency Condition with respect to the issuance of such Notes has been satisfied;
(Civ) in the case of Additional Notes, if any existing Notes shall remain Outstanding following such issuance of such Additional Notes (other than in connection with a Series Refinancing Event or such existing Notes that will be repaid in full from the proceeds of the issuance of such Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date), one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) [Reserved];
(B) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the such issuance of such Additional Notes;
(DC) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notesissuance;
(D) [Reserved];
(E) subject to Section 5.16[Reserved];
(F) [Reserved];
(G) in the case of any Series of Notes that is rated by a Rating Agency, if there is one or more Series of Notes Outstanding (other than a Series of Notes Outstanding that will be repaid in full from the proceeds of issuance of the new Series of Notes or otherwise on the applicable Series Closing Date), the Additional Notes DSCR is greater than or equal to 2.00:1.00, in each case after giving pro forma effect Rating Agency Condition with respect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such NotesAdditional Notes is satisfied;
(F) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes;
(G) the Series Legal Final Maturity Date of any new Class of Notes will not be prior to the Series Legal Final Maturity Date of any Class of Notes then Outstanding;
(H) an Officer’s Certificate, executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date, certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Notes have been satisfied or waived;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes;
(3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(4) all representations and warranties of the Issuer in this the Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date), which representation and warranty shall remain true (2) (x) neither the execution and correct as delivery by the Issuer of such earlier date Notes and the Supplement nor the performance by the Issuer of its obligations under each of the Notes and the Supplement: (A) conflicts with the Charter Documents of the Issuer; (B) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party; or (C) contravenes any order or decree that is applicable to the Issuer; and (y) there is no action, proceeding, or investigation pending or threatened in all material respects)writing against FAT Brands or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Issuer;
(I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without thereto, except for (i) increases in the aggregate Outstanding Principal Amount of any existing Series, Class, Subclass or Tranche of Notes and (ii) such changes that are permitted in accordance with the terms hereunder and the applicable Series Supplement, in each case, if such Additional Notes are issued thereunder, and all consents as are required under this Base Indenture or and the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control Partyin connection with such proposed issuance have been granted;
(J) all costs, fees and expenses with respect to the issuance of such Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date (or issuance date with respect to Additional Notes of an existing Series, Class, Subclass or Tranche) have been paid or will be paid from the proceeds of issuance of such Additional Notes or other available amounts;
(K) all conditions precedent with respect to the authentication and delivery of such Additional Notes provided in this Base Indenture, the related Series Supplement and related note purchase agreement executed in connection with the issuance of such Notes; andAdditional Notes have been satisfied or waived;
(KL) [Reserved];
(M) if such Additional Notes include Subordinated Debtsubordinated debt, the terms of any such Additional Notes set forth in the applicable Supplement include the Subordinated Debt Provisions subordinated debt provisions to the extent applicable;
(N) the Series Legal Final Maturity Date for any Additional Notes will not be prior to the Series Legal Final Maturity Date of any Class of Senior Notes then Outstanding;
(O) each of the parties to the Transaction Documents with respect to such Additional Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is one year and one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, the Issuer, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law; provided, that none of the foregoing conditions shall apply and no Officer’s Certificates shall be required under this clause (iv) a Tax Opinion, dated if there are no Series of Notes Outstanding (apart from the new Series of Notes) on the applicable Series Closing Date; provided that, if there are no Notes Outstanding or if all Series of Notes Outstanding (apart from the new Series of Notes) will be repaid in full from the proceeds of the issuance of such the new Series of Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be required to be given in connection with the issuance of such Notes;
(v) [Reserved];
(vi) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control PartyControlling Class Representative, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such the Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date)Supplement;
(B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer and constitute constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms;
(C) such Notes have been duly authorized by the Issuer, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(D) none of the Securitization Entities Issuer is not required to be registered as an “investment company” under the Investment Company Act within the meaning of Section 3(a)(1) thereof1940 Act;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, and such Lien and security interests extend to any assets transferred to the Securitization Entities Issuer in connection with the issuance of such Notes;
(F) based on a reasoned analysis, the assets and liabilities of each Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBC[reserved];
(G) neither the execution and delivery by the Issuer of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its obligations under such each of the Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing SeriesSupplement, Class, Subclass or Tranche of Notes are issued if applicable) (i) conflicts with the Charter Documents of the Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the Issuer (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) nor the performance by the Issuer of its their payment obligations under each of such Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) Supplement: (i) violates any applicable law, rule or regulation of any relevant jurisdiction jurisdiction, or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding or investigation pending or threatened against TBC or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities 1933 Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer to the initial purchasers purchaser(s) thereof or by the initial purchasers purchaser(s) to the initial investors in such Notes to register such Notes under the Securities 1933 Act; and
(KJ) all conditions precedent to such issuance have been satisfied and that the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viiivii) such other documents, instruments, certifications, agreements or other items as the Trustee or Controlling Class Representative may reasonably require.
(c) Upon receipt of written notice from the Controlling Class Representative, confirming satisfaction, or written waiver (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be in writing), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes)deliver, as provided above, such Notes upon execution thereof by the Issuer and the Trustee’s receipt of a Company Request in accordance with, and subject to, Section 2.2(b); provided that, with respect to the Notes issued on the Closing Date, written notice from the Controlling Class Representative shall not be necessary and the Issuer’s delivery of the executed Notes shall be deemed to be confirmation of the satisfaction of the conditions set forth in Section 2.2(b). Notwithstanding anything contained herein or in any Supplement to the contrary, the Trustee shall be entitled to conclusively rely on, and shall be fully protected in so relying on, such written notice from the Controlling Class Representative (or in the case of the Notes issued on the Closing Date, the Issuer’s delivery of the executed Notes) and shall in no event be required to make inquiry or investigation as to whether the conditions set forth in Section 2.2(b) have been satisfied or waived. The closing of any issuance of Notes may (but shall not be required to) be effected through an escrow arrangement on terms acceptable to the Trustee and Issuer.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the Issuer may only use the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes Notwithstanding anything contained herein or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject in any Supplement to the consent of the Holders of any Series of Notes Outstanding. A new Series of Notes or contrary, no Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with under this Section 2.2 without the Transaction Documents, including acquisitions by prior written consent of the Securitization EntitiesControlling Class Representative.
Appears in 1 contract
Samples: Base Indenture (Fat Brands, Inc)
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of the certifications described in clauses (iii)(Hiii)(G) and (vi) below are true and correct as of the related applicable Series Closing Date, the Notes to be issued may be executed by the Issuer and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes on the Original Closing Date and other than with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable Series SupplementDate) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer upon notice to the Trustee no later than 5:00 p.m. (New York City time) two (2) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment to the related Series Supplement for Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) in the case of any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or otherwise on the applicable Series Closing Date):
(A) no Cash Trapping Flow Sweeping Period is in effect or will commence as a result of the issuance of such the Additional Notes;
(B) written confirmation from either the Manager or the Issuer that the Rating Agency Condition with respect to the issuance of such Additional Notes has been satisfied;
(C) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the issuance of such Additional Notes;
(D) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Additional Notes;
(E) subject to the terms of Section 5.16, the Additional Notes DSCR is greater than or equal to 2.00:1.00, in each case after giving pro forma effect to the issuance of such Additional Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(F) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00)7.00:1.00, in each case after giving pro forma effect to the issuance of such Additional Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Additional Notes;
(G) the Series Legal Final Maturity Date of any new Class of Notes will not be prior to the Series Legal Final Maturity Date of any Class of Notes then Outstanding;
(H) an Officer’s Certificate, executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date, certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) i. all conditions precedent with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Additional Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Additional Notes have been satisfied or waived;
(2) ii. the Guarantee and Collateral Agreement is in full force and effect as to such Additional Notes;
(3) iii. each of the parties to the Transaction Documents with respect to such Additional Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, reorganization, arrangement, Insolvency proceedings insolvency or liquidation proceedings, or other proceedings proceedings, under any federal or state bankruptcy or similar law; and
(4) iv. all representations and warranties of the Issuer in this Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date in all material respects);
(IH) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control Party. For the avoidance of doubt, Additional Notes may be fixed rate notes, floating rate notes and/or notes subject to a revolving commitment;
(JI) all costs, fees and expenses with respect to the issuance of such Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date have been paid or will be paid from the proceeds of the issuance of such Additional Notes; and
(KJ) if such Notes include Subordinated Debt, the terms of such Notes include the Subordinated Debt Provisions to the extent applicable;
(iv) a Tax Opinion, dated the applicable Series Closing Date; provided that, if there are no Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be required to be given in connection with the issuance of such Additional Notes;
(v) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer and constitute a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms;
(C) such Additional Notes have been duly authorized by the Issuer, and, when such Additional Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Additional Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(D) none of the Securitization Entities is required to be registered under the Investment Company Act within the meaning of Section 3(a)(1) thereof;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Additional Notes;
(F) based on a reasoned analysis, the assets and liabilities of each Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBCParent;
(G) neither the execution and delivery by the Issuer of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its obligations under such Additional Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) conflicts with the Charter Documents of the Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the Issuer (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer of such Additional Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Additional Notes are issued if applicable) nor the performance by the Issuer of its payment obligations under such Additional Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) violates any applicable law, rule or regulation of any relevant jurisdiction or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority Governmental Authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding or investigation pending or threatened against TBC Parent or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Additional Notes are being offered pursuant to a registration statement that has been declared effective under the Securities Act, it is not necessary in connection with the offer and sale of such Additional Notes by the Issuer to the initial purchasers thereof or by the initial purchasers to the initial investors in such Additional Notes to register such Additional Notes under the Securities Act; and
(K) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Additional Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viii) such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.
(c) Upon satisfaction, or waiver (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be in writing) (as directed by the Controlling Class Representative), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes)deliver, as provided above, such Additional Notes upon execution thereof by the Issuer.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
Appears in 1 contract
Samples: Base Indenture (Wingstop Inc.)
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment to the existing Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related Series Supplement.
(b) So long as each of the certifications described in clauses (iii)(H) and (vi) below are true and correct as of the related Series Closing Date, the Notes to be issued may be executed by the Issuer and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes on the Original Closing Date and other than with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable Series SupplementDate) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer upon notice to the Trustee no later than 5:00 p.m. (New York City time) two (2) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the Notes to be authenticated (or registered in the case of uncertificated notes), if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment to the related Series Supplement for Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) in the case of any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or otherwise on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes;
(B) written confirmation from either the Manager or the Issuer that the Rating Agency Condition with respect to the issuance of such Notes has been satisfied;
(C) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the issuance of such Notes;
(D) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notes;
(E) subject to Section 5.16, the Additional Notes DSCR is greater than or equal to 2.00:1.002.00:1.00 , in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes;
(F) the Senior Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00)7.00:1.00, in each case after giving pro forma effect to the issuance of such Notes, the use of the proceeds thereof and any repayment of existing Indebtedness, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such Notes;
(G) the Series Legal Final Maturity Date of any new Class of Notes will not be prior to the Series Legal Final Maturity Date of any Class of Notes then Outstanding;
(H) an Officer’s Certificate, executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date, certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Notes have been satisfied or waived;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes;
(3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(4) all representations and warranties of the Issuer in this Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date in all material respects);
(I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to the Trustee and the Control Party;
(J) all costs, fees and expenses with respect to the issuance of such Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date have been paid or will be paid from the proceeds of the issuance of such Notes; and
(K) if such Notes include Subordinated Debt, the terms of such Notes include the Subordinated Debt Provisions to the extent applicable;
(iv) a Tax Opinion, dated the applicable Series Closing Date; provided that, if there are no Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be required to be given in connection with the issuance of such Notes;
(v) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(B) the related Series Supplement and, if applicable, the amendment to the related Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued, has been duly authorized, executed and delivered by the Issuer and constitute a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms;
(C) such Notes have been duly authorized by the Issuer, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) by the Trustee, such Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(D) none of the Securitization Entities is required to be registered under the Investment Company Act within the meaning of Section 3(a)(1) thereof;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Notes;
(F) based on a reasoned analysis, the assets and liabilities of each Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBC;
(G) neither the execution and delivery by the Issuer of such Notes (or registered in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its obligations under such Notes and the Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) conflicts with the Charter Documents of the Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the Issuer (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) nor the performance by the Issuer of its payment obligations under such Notes and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) (i) violates any applicable law, rule or regulation of any relevant jurisdiction or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding or investigation pending or threatened against TBC or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer to the initial purchasers thereof or by the initial purchasers to the initial investors in such Notes to register such Notes under the Securities Act; and
(K) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viii) such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.
(c) Upon satisfaction, or waiver (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be in writing), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes)deliver, as provided above, such Notes upon execution thereof by the Issuer.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
Appears in 1 contract
Samples: Base Indenture (Yum Brands Inc)
Notes Issuable in Series. (a) The Notes shall be issued in one or more Series of Notes in one or more ClassesNotes, including as Additional Notes of an existing Series, Class, Subclass or Tranche of Notes. Each Series of Notes shall be issued pursuant to a Series Supplement. Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall be issued pursuant to an amendment a Supplement to the existing related Series Supplement. Any Series of Class A-1 Senior Notes may be uncertificated if provided for in the related its Series Supplement.
(b) So long as each of the certifications described in clauses clause (iii)(H) and (viiv) below (if applicable) are true and correct as of the related applicable Series Closing Date, Notes may from time to time (other than with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the Notes to be issued may related Series Supplement) be executed by the Issuer and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request (which, for the avoidance of doubt, may be the same as the Company Order provided pursuant to in Section 2.2(b)(i) below) at least five (5) Business Days (except in the case of the issuance of the first Series of Notes being issued on the Original Closing Date and other than or in connection with respect to Uncertificated Notes, which may from time to time be registered in accordance with this Base Indenture and the applicable a Series SupplementRefinancing Event) in advance of the related Series Closing Date (which Company Request will be revocable by the Issuer upon notice to the Trustee no later than 5:00 p.m. (New York City time) two (2) Business Days prior to the related Series Closing Date) and upon performance or delivery by the Issuer to the Trustee and the Control Party, and receipt by the Trustee and the Control Party, of the following:
(i) a Company Order authorizing and directing the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes by the Trustee and specifying the designation of such Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of the such Notes to be authenticated (or registered in the case of uncertificated notes)authenticated, if applicable, and the Note Rate with respect to such Notes (if any)Notes;
(ii) a Series Supplement for a new Series of Notes or an amendment a Supplement to the related Series Supplement for Additional Notes of issued under an existing Series, Class, Subclass or Tranche of Notes, as applicable, satisfying the criteria set forth in Section 2.3 executed by the Issuer and the Trustee and specifying the Principal Terms of such new Series of Notes or Additional Notes;
(iii) if any existing Notes shall remain Outstanding following such issuance of such Notes (other than in the case of any new connection with a Series of Refinancing Event or such existing Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes, if there is one or more Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) on the applicable Series Closing Date (unless all Series of Notes Outstanding (apart from such new Series of Notes or Additional Notes) that will be repaid in full from the proceeds of the issuance of such new Series of Notes or Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date):
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Notes;
(B) ), written confirmation from either the Manager or the Issuer that the Rating Agency Condition with respect to the issuance of such Notes has been satisfied;
(iv) in the case of Additional Notes, if any existing Notes shall remain Outstanding following such issuance of such Additional Notes (other than in connection with a Series Refinancing Event or such existing Notes that will be repaid in full from the proceeds of issuance of such Additional Notes or that will otherwise be repaid in full on the applicable Series Closing Date), one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) no Cash Trapping Period is in effect or will commence as a result of the issuance of such Additional Notes;
(B) the Rating Agency Condition with respect to the issuance of such Additional Notes is satisfied as described herein;
(C) no Rapid Amortization Event, Default or Event of Default has occurred and is continuing or will occur as a result of the such issuance of such Additional Notes;
(D) no Manager Termination Event has occurred and is continuing or will occur as a result of the issuance of such Notesissuance;
(E) subject to Section 5.16, the Additional Notes DSCR Inspire Leverage Ratio is greater less than or equal to 2.00:1.00, in each case 7.50x after giving pro forma effect to the issuance of such Additional Notes, the use of the proceeds thereof and any repayment of existing IndebtednessIndebtedness from such Additional Notes, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such NotesIndebtedness;
(F) the Senior WBS Leverage Ratio is less than or equal to 6.50:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.00:1.00) and the Holdco Leverage Ratio is less than or equal to 7.00:1.00 (or, on and after the 2021 Springing Amendments Implementation Date, 7.50:1.00), in each case 7.00x after giving pro forma effect to the issuance of such Additional Notes, the use of the proceeds thereof and any repayment of existing IndebtednessIndebtedness from such Additional Notes, including amounts to fund a defeasance deposit or other similar escrow arrangement in connection with the repayment of Indebtedness from such NotesIndebtedness;
(G) the Series Legal Final Maturity Date of any new Class of Additional Notes will not be prior Pro Forma DSCR is greater than or equal to the Series Legal Final Maturity Date of any Class of Notes then Outstanding2.00x;
(H) an Officer’s Certificate, executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date, certifying to the matters set forth in clauses (A) through (G) above and to the effect that:
(1) all conditions precedent with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Notes provided in the Indenture and, if applicable, the related Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Notes have been satisfied or waived;
(2) the Guarantee and Collateral Agreement is in full force and effect as to such Notes;
(3) each of the parties to the Transaction Documents with respect to such Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is (a) one year and one day, or (b) if longer, the applicable preference period in effect, and in case of (a) or (b) plus one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, arrangement, Insolvency proceedings or other proceedings under any federal or state bankruptcy or similar law; and
(4) all representations and warranties of the Issuer in this Base Indenture and the other Transaction Documents are true and correct, and will continue to be true and correct after giving effect to such issuance on the Series Closing Date, in all material respects (other than any representation or warranty that, by its terms, is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date in all material respects);
(I) other than increases in the aggregate principal amount of an existing Series, Class, Subclass or Tranche of Notes in connection with the issuance of Additional Notes of such existing Series, Class, Subclass or Tranche of Notes, the proposed issuance does not alter or change the terms of any Series of Notes Outstanding or the Series Supplement relating thereto without such consents as are required under this Base Indenture or the applicable Series Supplement as evidenced by an Officer’s Certificate delivered to Supplement, except for (i) increases in the Trustee aggregate Outstanding Principal Amount of any existing Series, Class, Subclass or Tranche of Notes and (ii) such changes that are permitted in accordance with the terms hereunder and the Control Partyapplicable Series Supplement, in each case, if such Additional Notes are issued thereunder;
(J) all costs, fees and expenses with respect to the issuance of such Additional Notes or relating to the actions taken in connection with such issuance that are required to be paid on the applicable Series Closing Date have been paid or will be paid from the proceeds of issuance of such Additional Notes or other available amounts;
(K) all conditions precedent with respect to the authentication and delivery (or with respect to Uncertificated Notes, registration) of such Additional Notes provided in this Base Indenture, the related Series Supplement and, if applicable, the related Class A-1 Note Purchase Agreement and any other related note purchase agreement executed in connection with the issuance of such Notes; andAdditional Notes have been satisfied or waived;
(KL) the Guarantee and Collateral Agreement is in full force and effect as to such Additional Notes;
(M) if such Additional Notes include Subordinated Debt, the terms of any such Additional Notes set forth in the applicable Supplement include the Subordinated Debt Provisions to the extent applicable;
(ivN) the Series Legal Final Maturity Date for any Additional Notes will not be prior to the Series Legal Final Maturity Date of any Class of Senior Notes then Outstanding;
(O) each of the parties to the Transaction Documents with respect to such Additional Notes has covenanted and agreed in the Transaction Documents that, prior to the date which is one year and one day after the payment in full of the latest maturing Note, it will not institute against, or join with any other Person in instituting against, any Securitization Entity, any involuntary bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any federal or state bankruptcy or similar law;
(v) a Tax Opinion, Opinion dated the applicable Series Closing Date; provided provided, however, that, if there are no Notes Outstanding or if all Series of Notes Outstanding will be repaid in full from the proceeds of the issuance of such Notes or otherwise on the applicable Series Closing Date, only the opinions set forth in clauses (b) and (c) of the definition of “Tax Opinion” will be Opinion are required to be given in connection with the issuance of such Notes;
(vvi) one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Control Party, dated the applicable Series Closing Date, substantially to the effect that:
(A) all of the instruments described in this Section 2.2(b) furnished to the Trustee and the Control Party conform to the requirements of this Base Indenture and the related Series Supplement and such the Notes are permitted to be authenticated (or registered in the case of Uncertificated Notes) by the Trustee pursuant to the terms of this Base Indenture and the related Series Supplement (except that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(B) the related Series Supplement and, if applicable, the amendment or Supplement to the related a Series Supplement pursuant to which the Additional Notes of an existing Serieshave been issued, Class, Subclass or Tranche of Notes are issuedas the case may be, has been duly authorized, executed and delivered by the Issuer and constitute constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms;
(C) such Notes have been duly authorized by the Issuer, and, when such Notes have been duly authenticated and delivered (or registered in the case of Uncertificated Notes) and delivered by the Trustee, such Notes will be legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms;
(D) none of the Securitization Entities is required to be registered as an “investment company” under the Investment Company Act within the meaning of Section 3(a)(1) thereof1940 Act;
(E) the Lien and the security interests created by this Base Indenture and the Guarantee and Collateral Agreement on the Collateral remain perfected as required by this Base Indenture and the Guarantee and Collateral Agreement, Agreement and such Lien and security interests extend to any assets transferred to the Securitization Entities in connection with the issuance of such Notes;
(F) based on a reasoned analysis, the assets and liabilities of each a Securitization Entity as a debtor in bankruptcy would not be substantively consolidated with the assets and liabilities of TBCARG in a manner prejudicial to Noteholders;
(G) neither the execution and delivery by the Issuer of such Notes (or registered registration in the case of Uncertificated Notes) and the Series Supplement (or amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) nor the performance by the Issuer of its obligations under such each of the Notes and the Series Supplement (or the amendment Supplement to the a Series Supplement pursuant to which the Additional Notes of an existing Serieshave been issued, Class, Subclass or Tranche of Notes are issued if applicable) as the case may be: (i) conflicts with the Charter Documents of the Issuer, (ii) constitutes a violation of, or a default under, any material agreement to which the Issuer is a party (which agreements may be set forth in a schedule to such opinion), or (iii) contravenes any order or decree that is applicable to the Issuer (which orders and decrees may be set forth in a schedule to such opinion);
(H) neither the execution and delivery by the Issuer of such Notes (or registration in the case of Uncertificated Notes) and the Series Supplement (or the amendment Supplement to the a Series Supplement pursuant to which such the Additional Notes are issued if applicable) have been issued, as the case may be, nor the performance by the Issuer of its payment obligations under each of such Notes and the related Series Supplement (or the amendment Supplement to the a Series Supplement pursuant to which the Additional Notes of an existing Serieshave been issued, Class, Subclass or Tranche of Notes are issued if applicable) as the case may be: (i) violates any applicable law, rule or regulation of any relevant jurisdiction jurisdiction, or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any applicable law, rule or regulation of any relevant jurisdiction except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made;
(I) there is no action, proceeding proceeding, or investigation pending or threatened against TBC ARG or any of its Subsidiaries before any court or administrative agency that may reasonably be expected to have a Material Adverse Effect on the business or assets of the Securitization Entities;
(J) unless such Notes are being offered pursuant to a registration statement that has been declared effective under the Securities 1933 Act, it is not necessary in connection with the offer and sale of such Notes by the Issuer to the initial purchasers purchaser(s) thereof or by the initial purchasers purchaser(s) to the initial investors in such Notes to register such Notes under the Securities 1933 Act; and
(K) all conditions precedent to such issuance have been satisfied and that the related Series Supplement (or the amendment Supplement to the a Series Supplement pursuant to which the Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) is authorized or permitted pursuant to the terms and conditions of the Indenture (except that no such Opinion of Counsel relating to the satisfaction of conditions precedent shall be required to be delivered in connection with the issuance of the first Series of Notes on the Original Closing Date);
(vi) one or more Officer’s Certificates, each executed by an Authorized Officer of the Issuer, dated as of the applicable Series Closing Date to the effect that:
(A) the related Series Supplement (or the amendment to the Series Supplement pursuant to which Additional Notes of an existing Series, Class, Subclass or Tranche of Notes are issued if applicable) has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms; and
(B) all conditions precedent to such issuance have been satisfied and issued, as the related Series Supplement (or the amendment to the Series Supplement pursuant to which such Notes are issued if applicable) case may be, is authorized or permitted pursuant to the terms and conditions of the Indenture;
(vii) any related Series Hedge Agreement entered into in connection with such issuance and executed by each of the parties thereto in compliance with Section 8.29(a); and
(viii) such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.
(c) Upon satisfaction, or waiver by the Control Party (as directed by the Controlling Class Representative) by the Control Party (which waiver shall be Representative in writing), of the conditions set forth in Section 2.2(b), the Trustee shall authenticate and deliver (or register in the case of Uncertificated Notes), as provided above, such Notes upon execution thereof by the Issuer.
(d) With regard to any new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes issued pursuant to this Section 2.2, the proceeds from such issuance may only be used to repay (i) Senior Subordinated Notes and Subordinated Notes if all Senior Notes have been repaid and (ii) Subordinated Notes if all Senior Notes and Senior Subordinated Notes have been repaid; provided provided, that at any time on or after the Series Anticipated Repayment Date for any Series of Notes, the proceeds from the issuance of Subordinated Notes may only be used to repay Senior Notes, Senior Subordinated Notes or all Outstanding Classes of Senior Notes and Senior Subordinated Notes.
(e) The issuance of a new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes shall not be subject to the consent of the Holders of any Series of Notes Outstanding. A new Series of Notes or Additional Notes of an existing Series, Class, Subclass or Tranche of Notes may be issued for any purpose consistent with the Transaction Documents, including acquisitions by the Securitization Entities.
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