Optional Redemption of Certificates. (i) If on any Distribution Date, before giving effect to any distributions to be made on such date, the aggregate outstanding principal amount of the Term Assets would be less than 10% of the Initial Principal Amount of the Term Assets, the Swap Counterparty may, at its option, by delivering a written notice to the Indenture Trustee pursuant to the Indenture (with a copy to the Trustee and the Administrator), direct the redemption of all of the outstanding Notes and Certificates at their Redemption Price. If the Swap Counterparty so delivers a written notice of redemption to the Indenture Trustee, the Indenture Trustee shall deliver a notice of redemption to each Noteholder and Certificateholder (a "Redemption Notice"), (with a copy to the Trustee and the Administrator), in the manner provided in the Indenture; PROVIDED that the Redemption Date for such redemption shall be the first Payment Date which is at least 15 days after the date of the Indenture Trustee's delivery of such Redemption Notice. (ii) If a Redemption Notice is delivered by the Indenture Trustee as provided herein, the Indenture Trustee shall, by no later than the 10th day before the Redemption Date, notify the Trustee, Administrator and the Swap Counterparty and arrange for the sale by the Administrator, in accordance with the Sale Procedures (as defined in the Indenture), of all of the Eligible Investments and Term Assets then held by the Trust, for settlement on the Redemption Date. Any Sale Proceeds (as defined in the Indenture) realized from such sale shall be deposited into the Collection Account for distribution as provided in the Indenture.
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Samples: Series Supplement (Structured Products Corp), Series Supplement (Structured Products Corp)
Optional Redemption of Certificates. (ia) If on any Distribution DateSubject to paragraph (d) below, before giving effect to any distributions to be made on such date, in the aggregate outstanding principal amount of the Term Assets would be less than 10% of the Initial Principal Amount of the Term Assets, the Swap Counterparty may, at its option, by delivering a event that Lessee shall have given written notice to the Indenture Trustee pursuant to the Indenture (with a copy to the Trustee and the Administrator), direct the redemption of all of the outstanding Notes and Certificates at their Redemption Price. If the Swap Counterparty so delivers a written notice of redemption to the Indenture Owner Trustee, the Indenture Trustee and the Owner Participant requesting that there be effected a voluntary redemption of the Outstanding Certificates by the Owner Trustee as part of a refunding or refinancing transaction, the Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with Lessee as to the terms of such refunding or refinancing transaction (including the terms of any debt to be issued in connection with such refunding or refinancing transaction and the documentation to be executed in connection therewith), and if after such good faith negotiation Lessee and the Owner Participant shall have concluded an agreement with respect to such terms:
(1) within ten (10) Business Days after the reaching of such agreement, the Owner Participant will deliver to Lessee a notice certificate of redemption an authorized representative of the Owner Participant (the "Refinancing Certificate") setting forth (i) the proposed date on which the Outstanding Certificates will be redeemed, describing the new debt to each Noteholder be issued and Certificateholder the other aspects of such refunding or refinancing transaction to be consummated (a such date, the "Redemption NoticeRefinancing Date", which date shall be determined so as to comply with Section 6.03(a) of the Trust Indenture) and (ii) the following information: (A) subject to the limitations set forth in this Section 17, the proposed adjusted ratio of debt evidenced by the Certificates to the Owner Participant's investment in the beneficial ownership of the Aircraft (such ratio, the "Debt/Equity Ratio"), (with a copy B) the principal amount of debt to be issued by the Owner Trustee on the Refinancing Date, and (C) the proposed revised debt amortization and schedules of Basic Rent, Stipulated Loss Value percentages and Termination Value percentages and the Administratorrevised Special Purchase Price (including any installments thereof). The Refinancing Certificate shall not provide for a Debt/Equity ratio of more than 4:1. Within ten (10) Business Days of its receipt of the Refinancing Certificate, Lessee may demand a verification of the information set forth in the Refinancing Certificate in the manner provided described in Section 3.7 of the Lease. Upon the acceptance by Lessee of the accuracy of the information set forth in the Indenture; PROVIDED that Refinancing Certificate or the Redemption determination of such information pursuant to such verification procedures (such information, the "Refinancing PARTICIPATION AGREEMENT [N602SW] -49- 55 Information") the appropriate parties will take the actions specified in subparagraphs (2) through (6) below;
(2) the appropriate parties will enter into a financing or loan agreement in form and substance reasonably satisfactory to the Owner Participant, the Owner Trustee and Lessee (which may involve an underwriting agreement in connection with a public offering of such debt or the purchase of such debt by a publicly funded entity (or entities) or the sale of the Owner Trustee's interest in the Trust Estate and/or the Aircraft and its simultaneous resale to the Owner Trustee) with the institution or institutions to be named therein (A) providing for (i) the issuance and sale by the Owner Trustee to such institution or institutions on the Refinancing Date for such redemption of debt securities in an aggregate principal amount specified in the Refinancing Information, which amount shall be the first Payment Date which is at least 15 days after equal to the date aggregate principal amount of all Certificates Outstanding on the Indenture Trustee's delivery of Refinancing Date (such Redemption Notice.
debt securities, the "New Debt"), (ii) If a Redemption Notice is delivered by the Indenture Trustee as provided herein, application of the Indenture Trustee shall, by no later than proceeds of the 10th day before sale of the Redemption New Debt to the redemption of all such Certificates on the Refinancing Date and the payment of any other amounts payable to the Holders under the Operative Agreements on the Refinancing Date, notify and (iii) the Trusteepayment of the excess, Administrator if any, of such proceeds over the amount necessary to effect such redemption to the Owner Trustee for payment to the Owner Participant and (B) pursuant to which the parties to the refinancing transaction (including the Owner Participant and Lessee but excluding any public holders of debt) make such representations, warranties and covenants as the Owner Participant or Lessee may reasonably require;
(3) Lessee and the Swap Counterparty Owner Trustee will amend the Lease to provide that (i) Interim Rent (if applicable) and arrange for the sale by the Administrator, Basic Rent payable in accordance with the Sale Procedures (as defined in the Indenture), of all respect of the Eligible Investments period from and Term Assets then held by after the Trust, for settlement on the Redemption Date. Any Sale Proceeds (as defined in the Indenture) realized from such sale Refinancing Date shall be deposited into the Collection Account for distribution as provided in the Refinancing Information (and shall take into account any variation of the Deferred Equity Amount paid by or on behalf of the Owner Participant pursuant to Section 8(dd), if applicable, from the corresponding Assumed Interest Amount with respect to the Deferred Equity Date), (ii) amounts payable in respect of Stipulated Loss Value and Termination Value from and after the Refinancing Date shall be as provided in the Refinancing Information, and (iii) in the event that the Series SWA 1995 Trust N602SW Certificates shall have been publicly issued, the early termination notice revocation and payment provisions shall be modified to comport with the applicable notice and payment requirements of The Depository Trust Company or any other depository;
(4) the Owner Trustee will enter into an agreement to provide for the securing thereunder of the New Debt in like manner as the Certificates and will enter into such amendments and supplements to the Trust Indenture (or such new indenture or other security agreement) as may be necessary to effect such security;
(5) unless otherwise agreed to or required by the Owner Participant to be paid as a Transaction Cost and whether or not such refunding or refinancing transaction is consummated, Lessee shall pay on a net after-tax basis all of the reasonable out-of-pocket expenses of all parties to such refunding or refinancing, including, without limitation, the reasonable fees and expenses of such parties' counsel (including allocated costs of the Original Loan Participant's in-house counsel) and any related loan or commitment fees; and PARTICIPATION AGREEMENT [N602SW] -50- 56 (6) subject to compliance by the Owner Trustee with all applicable terms and conditions for voluntary redemption under the Trust Indenture and this Agreement, each Holder of a Certificate being refinanced or refunded will transfer on the applicable Redemption Date to the Owner Trustee each Certificate held by it immediately prior to such refunding or refinancing for cancellation (and the Owner Trustee shall cancel the same), against simultaneous receipt by such Holder of payment for the then outstanding principal amount of such Certificate, accrued and unpaid interest thereon, Premium, if any, plus in the case of the Series SWA 1995 Trust N602SW-I Certificates, Break Amount, if any, together with payment in full of all other amounts then payable to such Holder and the Indenture Trustee hereunder or under the Trust Indenture.
(b) In the case of a refunding or refinancing involving a public offering of the New Debt, the Owner Participant shall have the right (but not the obligation) to review and approve (which approval shall not be unreasonably withheld) any registration statement filed with the SEC to be employed in connection therewith. Any public offering of the New Debt shall not, except as required by Lessee, contain any restrictions on the sale to Holders who may use ERISA funding sources. It is expressly understood that the Owner Participant shall have no obligation hereunder to consent to such public refunding or refinancing if, in its good faith judgment, such refunding or refinancing increases its or any of its Affiliates' exposure to (i) liabilities under federal or state securities laws, (ii) regulation under state or federal securities laws, (iii) the need to disclose publicly information that is not generally available to the public, or (iv) being adversely affected in its ability to engage in any other financing transaction, in each case to a level unacceptable to it in its reasonable, good faith judgment. Any trustee of public debt shall be (i) Wilmington Trust Company or (ii) a bank or trust company in the United States and having a combined capital and surplus of at least $100,000,000, if there be such an institution willing, able and legally qualified to perform the duties of trustee upon reasonable or customary terms.
(c) Lessee shall give the Indenture Trustee at least thirty (30) days' irrevocable written notice of the proposed date of the optional refunding or refinancing.
(d) Anything in this Section 17 to the contrary notwithstanding, (i) all agreements and instruments to be executed and delivered by the Owner Participant or the Owner Trustee under this Section 17 shall be reasonably satisfactory in form and substance to the Owner Participant, (ii) neither Owner Participant nor the Owner Trustee shall be required to execute and deliver any such agreement or instrument or to make any other arrangements which in its opinion would result in any unreimbursed increased costs or liability, including any adverse tax consequences or risk thereof (unless indemnified against to its reasonable satisfaction) or would result in any other material detriment or disadvantage to it, and (iii) the Owner Participant shall have no obligation to make any additional investment in connection with any such refinancing.
(e) Without the consent of the Owner Participant, there shall be no more than two optional refundings or refinancings under this Section 17.
(f) Any refunding or refinancing pursuant to this Section 17 shall be of all Certificates then Outstanding and shall be effected in accordance with Section 6.03(a) of the Trust Indenture.
(g) When calculating any of the information required to be set forth in a Refinancing Certificate, the Owner Participant shall make such calculations in a manner which (A) maintains its Net Economic Return, (B) minimizes the Net Present Value of Rents to the extent possible consistent with clause (A), (C) is consistent with Rev. Proc. 75-21 and Rev. Proc. 75-28 (or any successor thereto) and would not cause the Lease to constitute a "disqualified leaseback or long term agreement" within the meaning of Section 467 of the Code (or any successor thereto), and (D) uses the same methodology and assumptions used by the Owner Participant in determining Interim Rent, Basic Rent, Stipulated Loss Values, Termination Values and Special Purchase Price on the Delivery Date (except to the extent such assumptions have been altered since the Delivery Date in connection with an adjustment to Rent pursuant to Section 3.7 of the Lease).
(h) No refinancing or refunding pursuant to this Section 17 shall be permitted during the continuance of a Lease Default or a Lease Event of Default.
Appears in 1 contract
Optional Redemption of Certificates. (ia) If on any Distribution DateSubject to paragraph (d) below, before giving effect to any distributions to be made on such date, in the aggregate outstanding principal amount of the Term Assets would be less than 10% of the Initial Principal Amount of the Term Assets, the Swap Counterparty may, at its option, by delivering a event that Lessee shall have given written notice to the Indenture Trustee pursuant to Owner Trustee, the Indenture (with a copy to the Trustee and the Administrator), direct the Owner Participant requesting that there be effected a voluntary redemption of all of the outstanding Notes and Outstanding Certificates at their Redemption Price. If by the Swap Counterparty so delivers Owner Trustee as part of a written notice of redemption refunding or refinancing transaction, the Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with Lessee as to the Indenture Trusteeterms of such refunding or refinancing transaction (including the terms of any debt to be issued in connection with such refunding or refinancing transaction and the documentation to be executed in connection therewith), and if after such good faith negotiation Lessee and the Owner Participant shall have concluded an agreement with respect to such terms:
(1) within ten (10) Business Days after the reaching of such agreement, the Indenture Trustee Owner Participant will deliver to Lessee a certificate of an authorized representative of the Owner Participant (the "Refinancing Certificate") setting forth (i) the proposed date on which the Outstanding Certificates will be redeemed, describing the new debt to be issued and the other aspects of such refunding or refinancing transaction to be consummated (such date, the "Refinancing Date", which date shall deliver a notice be determined so as to comply with Section 6.03(a) of redemption the Trust Indenture) and (ii) the following information: (A) subject to each Noteholder and Certificateholder the limitations set forth in this Section 17, the proposed adjusted ratio of debt evidenced by the Certificates to the Owner Participant's investment in the beneficial ownership of the Aircraft (a such ratio, the "Redemption NoticeDebt/Equity Ratio"), (with a copy B) the principal amount of debt to be issued by the Owner Trustee on the Refinancing Date, and (C) the proposed revised debt amortization and schedules of Interim Rent, Basic Rent, Stipulated Loss Value percentages and Termination Value percentages and the Administratorrevised Special Purchase Price PARTICIPATION AGREEMENT [N605SW] -49- 55 (including any installments thereof). The Refinancing Certificate shall not provide for a Debt/Equity ratio of more than 4:1. Within ten (10) Business Days of its receipt of the Refinancing Certificate, Lessee may demand a verification of the information set forth in the Refinancing Certificate in the manner provided described in Section 3.7 of the Lease. Upon the acceptance by Lessee of the accuracy of the information set forth in the Indenture; PROVIDED that Refinancing Certificate or the Redemption determination of such information pursuant to such verification procedures (such information, the "Refinancing Information") the appropriate parties will take the actions specified in subparagraphs (2) through (6) below;
(2) the appropriate parties will enter into a financing or loan agreement in form and substance reasonably satisfactory to the Owner Participant, the Owner Trustee and Lessee (which may involve an underwriting agreement in connection with a public offering of such debt or the purchase of such debt by a publicly funded entity (or entities)) with the institution or institutions to be named therein (A) providing for (i) the issuance and sale by the Owner Trustee to such institution or institutions on the Refinancing Date for such redemption of debt securities in an aggregate principal amount specified in the Refinancing Information, which amount shall be the first Payment Date which is at least 15 days after equal to the date aggregate principal amount of all Certificates Outstanding on the Indenture Trustee's delivery of Refinancing Date (such Redemption Notice.
debt securities, the "New Debt"), (ii) If a Redemption Notice is delivered by the Indenture Trustee as provided herein, application of the Indenture Trustee shall, by no later than proceeds of the 10th day before sale of the Redemption New Debt to the redemption of all such Certificates on the Refinancing Date and the payment of any other amounts payable to the Holders under the Operative Agreements on the Refinancing Date, notify and (iii) the Trusteepayment of the excess, Administrator if any, of such proceeds over the amount necessary to effect such redemption to the Owner Trustee for payment to the Owner Participant and (B) pursuant to which the parties to the refinancing transaction (including the Owner Participant and Lessee but excluding any public holders of debt) make such representations, warranties and covenants as the Owner Participant or Lessee may reasonably require;
(3) Lessee and the Swap Counterparty Owner Trustee will amend the Lease to provide that (i) Interim Rent (if applicable) and arrange for the sale by the Administrator, Basic Rent payable in accordance with the Sale Procedures (as defined in the Indenture), of all respect of the Eligible Investments period from and Term Assets then held by after the Trust, for settlement on the Redemption Date. Any Sale Proceeds (as defined in the Indenture) realized from such sale Refinancing Date shall be deposited into the Collection Account for distribution as provided in the Refinancing Information (and shall take into account any variation of either Deferred Equity Amount paid by or on behalf of the Owner Participant pursuant to Section 8(dd), if applicable, from the corresponding Assumed Interest Amount with respect to the Deferred Equity Date or the first Rent Payment Date, as the case may be), (ii) amounts payable in respect of Stipulated Loss Value and Termination Value from and after the Refinancing Date shall be as provided in the Refinancing Information, and (iii) in the event that the Series SWA 1995 Trust N605SW Certificates shall have been publicly issued, the early termination notice revocation and payment provisions shall be modified to comport with the applicable notice and payment requirements of The Depository Trust Company or any other depository;
(4) the Owner Trustee will enter into an agreement to provide for the securing thereunder of the New Debt in like manner as the Certificates and will enter into such amendments and supplements to the Trust Indenture (or such new indenture or other security agreement) as may be necessary to effect such security;
(5) unless otherwise agreed to or required by the Owner Participant to be paid as a Transaction Cost and whether or not such refunding or refinancing transaction PARTICIPATION AGREEMENT [N605SW] -50- 56 is consummated, Lessee shall pay at no net after-tax cost to any other party all of the reasonable out-of- pocket expenses of all parties to such refunding or refinancing, including without limitation, the reasonable fees and expenses of such parties' counsel and any related loan or commitment fees; and
(6) subject to compliance by the Owner Trustee with all applicable terms and conditions for voluntary redemption under the Trust Indenture and this Agreement, each Holder of a Certificate being refinanced or refunded will transfer on the applicable Redemption Date to the Owner Trustee each Certificate held by it immediately prior to such refunding or refinancing for cancellation (and the Owner Trustee shall cancel the same), against simultaneous receipt by such Holder of payment for the then outstanding principal amount of such Certificate, accrued and unpaid interest thereon, Premium, if any, plus in the case of the Series SWA 1995 Trust N605SW-I Certificates, Break Amount, if any, together with payment in full of all other amounts then payable to such Holder and the Indenture Trustee hereunder or under the Trust Indenture.
(b) In the case of a refunding or refinancing involving a public offering of the New Debt, the Owner Participant shall have the right (but not the obligation) to review and approve (which approval shall not be unreasonably withheld) any registration statement filed with the SEC to be employed in connection therewith. Any public offering of the New Debt shall not, except as required by Lessee, contain any restrictions on the sale to Holders who may use ERISA funding sources. It is expressly understood that the Owner Participant shall have no obligation hereunder to consent to such public refunding or refinancing if, in its good faith judgment, such refunding or refinancing increases its or any of its Affiliates' exposure to (i) liabilities under federal or state securities laws, (ii) regulation under state or federal securities laws, (iii) the need to disclose publicly information that is not generally available to the public, or (iv) being adversely affected in its ability to engage in any other financing transaction, in each case to a level unacceptable to it in its reasonable, good faith judgment. Any trustee of public debt shall be (i) Wilmington Trust Company or (ii) a bank or trust company in the United States and having a combined capital and surplus of at least $100,000,000, if there be such an institution willing, able and legally qualified to perform the duties of trustee upon reasonable or customary terms.
(c) Lessee shall give the Indenture Trustee at least thirty (30) days' irrevocable written notice of the proposed date of the optional refunding or refinancing.
(d) Anything in this Section 17 to the contrary notwithstanding, (i) all agreements and instruments to be executed and delivered by the Owner Participant or the Owner Trustee under this Section 17 shall be reasonably satisfactory in form and substance to the Owner Participant, (ii) neither Owner Participant nor the Owner Trustee shall be required to execute and deliver any such agreement or instrument or to make any other arrangements which in its opinion would result in any unreimbursed increased costs or liability, including any adverse tax consequences or risk thereof (unless indemnified against to its reasonable satisfaction) or would result in any other material detriment or disadvantage to it, and (iii) the Owner Participant shall have no obligation to make any additional investment in connection with any such refinancing.
(e) Without the consent of the Owner Participant, there shall be no more than two optional refundings or refinancings under this Section 17. PARTICIPATION AGREEMENT [N605SW] -51- 57 (f) Any refunding or refinancing pursuant to this Section 17 shall be of all Certificates then Outstanding and shall be effected in accordance with Section 6.03(a) of the Trust Indenture.
Appears in 1 contract
Optional Redemption of Certificates. (ia) If on any Distribution DateSubject to paragraph (d) below, before giving effect to any distributions to be made on such date, in the aggregate outstanding principal amount of the Term Assets would be less than 10% of the Initial Principal Amount of the Term Assets, the Swap Counterparty may, at its option, by delivering a event that Lessee shall have given written notice to the Indenture Trustee pursuant to the Indenture (with a copy to the Trustee and the Administrator), direct the redemption of all of the outstanding Notes and Certificates at their Redemption Price. If the Swap Counterparty so delivers a written notice of redemption to the Indenture Owner Trustee, the Indenture Trustee and the Owner Participant requesting that there be effected a voluntary redemption of the Outstanding Certificates by the Owner Trustee as part of a refunding or refinancing transaction, the Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with Lessee as to the terms of such refunding or refinancing transaction (including the terms of any debt to be issued in connection with such refunding or refinancing transaction and the documentation to be executed in connection therewith), and if after such good faith negotiation Lessee and the Owner Participant shall have concluded an agreement with respect to such terms:
(1) within ten (10) Business Days after the reaching of such agreement, the Owner Participant will deliver to Lessee a notice certificate of redemption an authorized representative of the Owner Participant (the "Refinancing Certificate") setting forth (i) the proposed date on which the Outstanding Certificates will be redeemed, describing the new PARTICIPATION AGREEMENT [N603SW] -48- 54 debt to each Noteholder be issued and Certificateholder the other aspects of such refunding or refinancing transaction to be consummated (a such date, the "Redemption NoticeRefinancing Date", which date shall be determined so as to comply with Section 6.03(a) of the Trust Indenture) and (ii) the following information: (A) subject to the limitations set forth in this Section 17, the proposed adjusted ratio of debt evidenced by the Certificates to the Owner Participant's investment in the beneficial ownership of the Aircraft (such ratio, the "Debt/Equity Ratio"), (with a copy B) the principal amount of debt to be issued by the Owner Trustee on the Refinancing Date, and (C) the proposed revised debt amortization and schedules of Basic Rent, Stipulated Loss Value percentages and Termination Value percentages and the Administratorrevised Special Purchase Price (including any installments thereof). The Refinancing Certificate shall not provide for a Debt/Equity ratio of more than 4:1. Within ten (10) Business Days of its receipt of the Refinancing Certificate, Lessee may demand a verification of the information set forth in the Refinancing Certificate in the manner provided described in Section 3.7 of the Lease. Upon the acceptance by Lessee of the accuracy of the information set forth in the Indenture; PROVIDED that Refinancing Certificate or the Redemption determination of such information pursuant to such verification procedures (such information, the "Refinancing Information") the appropriate parties will take the actions specified in subparagraphs (2) through (6) below;
(2) the appropriate parties will enter into a financing or loan agreement in form and substance reasonably satisfactory to the Owner Participant, the Owner Trustee and Lessee (which may involve an underwriting agreement in connection with a public offering of such debt or the purchase of such debt by a publicly funded entity (or entities) or the sale of the Owner Trustee's interest in the Trust Estate and/or the Aircraft and its simultaneous resale to the Owner Trustee) with the institution or institutions to be named therein (A) providing for (i) the issuance and sale by the Owner Trustee to such institution or institutions on the Refinancing Date for such redemption of debt securities in an aggregate principal amount specified in the Refinancing Information, which amount shall be the first Payment Date which is at least 15 days after equal to the date aggregate principal amount of all Certificates Outstanding on the Indenture Trustee's delivery of Refinancing Date (such Redemption Notice.
debt securities, the "New Debt"), (ii) If a Redemption Notice is delivered by the Indenture Trustee as provided herein, application of the Indenture Trustee shall, by no later than proceeds of the 10th day before sale of the Redemption New Debt to the redemption of all such Certificates on the Refinancing Date and the payment of any other amounts payable to the Holders under the Operative Agreements on the Refinancing Date, notify and (iii) the Trusteepayment of the excess, Administrator if any, of such proceeds over the amount necessary to effect such redemption to the Owner Trustee for payment to the Owner Participant and (B) pursuant to which the parties to the refinancing transaction (including the Owner Participant and Lessee but excluding any public holders of debt) make such representations, warranties and covenants as the Owner Participant or Lessee may reasonably require;
(3) Lessee and the Swap Counterparty Owner Trustee will amend the Lease to provide that (i) Interim Rent (if applicable) and arrange for the sale by the Administrator, Basic Rent payable in accordance with the Sale Procedures (as defined in the Indenture), of all respect of the Eligible Investments period from and Term Assets then held by after the Trust, for settlement on the Redemption Date. Any Sale Proceeds (as defined in the Indenture) realized from such sale Refinancing Date shall be deposited into the Collection Account for distribution as provided in the Refinancing Information (and shall take into account any variation of the Deferred Equity Amount paid by or on behalf of the Owner Participant pursuant to Section 8(dd), if applicable, from the corresponding Assumed Interest Amount with respect to the Deferred Equity Date), (ii) amounts payable in respect of Stipulated Loss Value and Termination Value from and after the Refinancing Date shall be as provided in the Refinancing Information, and (iii) in the event that the Series SWA 1995 Trust N603SW Certificates shall have been publicly issued, the early termination notice PARTICIPATION AGREEMENT [N603SW] -49- 55 revocation and payment provisions shall be modified to comport with the applicable notice and payment requirements of The Depository Trust Company or any other depository;
(4) the Owner Trustee will enter into an agreement to provide for the securing thereunder of the New Debt in like manner as the Certificates and will enter into such amendments and supplements to the Trust Indenture (or such new indenture or other security agreement) as may be necessary to effect such security;
(5) unless otherwise agreed to or required by the Owner Participant to be paid as a Transaction Cost and whether or not such refunding or refinancing transaction is consummated, Lessee shall pay on a net after-tax basis all of the reasonable out-of-pocket expenses of all parties to such refunding or refinancing, including, without limitation, the reasonable fees and expenses of such parties' counsel (including allocated costs of the Original Loan Participant's in-house counsel) and any related loan or commitment fees; and
(6) subject to compliance by the Owner Trustee with all applicable terms and conditions for voluntary redemption under the Trust Indenture and this Agreement, each Holder of a Certificate being refinanced or refunded will transfer on the applicable Redemption Date to the Owner Trustee each Certificate held by it immediately prior to such refunding or refinancing for cancellation (and the Owner Trustee shall cancel the same), against simultaneous receipt by such Holder of payment for the then outstanding principal amount of such Certificate, accrued and unpaid interest thereon, Premium, if any, plus in the case of the Series SWA 1995 Trust N603SW-I Certificates, Break Amount, if any, together with payment in full of all other amounts then payable to such Holder and the Indenture Trustee hereunder or under the Trust Indenture.
(b) In the case of a refunding or refinancing involving a public offering of the New Debt, the Owner Participant shall have the right (but not the obligation) to review and approve (which approval shall not be unreasonably withheld) any registration statement filed with the SEC to be employed in connection therewith. Any public offering of the New Debt shall not, except as required by Lessee, contain any restrictions on the sale to Holders who may use ERISA funding sources. It is expressly understood that the Owner Participant shall have no obligation hereunder to consent to such public refunding or refinancing if, in its good faith judgment, such refunding or refinancing increases its or any of its Affiliates' exposure to (i) liabilities under federal or state securities laws, (ii) regulation under state or federal securities laws, (iii) the need to disclose publicly information that is not generally available to the public, or (iv) being adversely affected in its ability to engage in any other financing transaction, in each case to a level unacceptable to it in its reasonable, good faith judgment. Any trustee of public debt shall be (i) Wilmington Trust Company or (ii) a bank or trust company in the United States and having a combined capital and surplus of at least $100,000,000, if there be such an institution willing, able and legally qualified to perform the duties of trustee upon reasonable or customary terms.
(c) Lessee shall give the Indenture Trustee at least thirty (30) days' irrevocable written notice of the proposed date of the optional refunding or refinancing. PARTICIPATION AGREEMENT [N603SW] -50- 56 (d) Anything in this Section 17 to the contrary notwithstanding, (i) all agreements and instruments to be executed and delivered by the Owner Participant or the Owner Trustee under this Section 17 shall be reasonably satisfactory in form and substance to the Owner Participant, (ii) neither Owner Participant nor the Owner Trustee shall be required to execute and deliver any such agreement or instrument or to make any other arrangements which in its opinion would result in any unreimbursed increased costs or liability, including any adverse tax consequences or risk thereof (unless indemnified against to its reasonable satisfaction) or would result in any other material detriment or disadvantage to it, and (iii) the Owner Participant shall have no obligation to make any additional investment in connection with any such refinancing.
Appears in 1 contract
Optional Redemption of Certificates. (ia) If on any Distribution DateSubject to paragraph (d) below, before giving effect to any distributions to be made on such date, in the aggregate outstanding principal amount of the Term Assets would be less than 10% of the Initial Principal Amount of the Term Assets, the Swap Counterparty may, at its option, by delivering a event that Lessee shall have given written notice to the Indenture Trustee pursuant to the Indenture (with a copy to the Trustee and the Administrator), direct the redemption of all of the outstanding Notes and Certificates at their Redemption Price. If the Swap Counterparty so delivers a written notice of redemption to the Indenture Owner Trustee, the Indenture Trustee and the Owner Participant requesting that there be effected a voluntary redemption of all or part of the Outstanding Certificates by the Owner Trustee as part of a refunding or refinancing transaction, the Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with Lessee as to the terms of such refunding or refinancing transaction (including the terms of any debt to be issued in connection with such refunding or refinancing transaction and the documentation to be executed in connection therewith), and if after such good faith negotiation Lessee and the Owner Participant shall have concluded an agreement with respect to such terms:
(1) within ten (10) Business Days after the reaching of such agreement, the Owner Participant will deliver to Lessee a notice certificate of redemption an authorized representative of the Owner Participant (the "Refinancing Certificate") setting forth (i) the proposed date on which the Outstanding Certificates will be redeemed, describing the new debt to each Noteholder be issued and Certificateholder the other aspects of such refunding or refinancing transaction to be consummated (a such date, the "Redemption NoticeRefinancing Date", which date shall be determined so as to comply with Section 6.03(a) of the Trust Indenture) and (ii) the following information: (A) subject to the limitations set forth in this Section 17, any proposed adjusted ratio of debt evidenced by the Certificates to the Owner Participant's investment in the beneficial ownership of the Aircraft (such ratio, the "Debt/Equity Ratio"), (with a copy B) the principal amount of debt to be issued by the Owner Trustee on the Refinancing Date and, if such amount is less than the aggregate principal amount of the Outstanding Certificates (as the Owner Participant may agree in its sole discretion) the amount of any additional contribution to the Trustee Trust Estate to be made by the Owner Participant on the Refinancing Date, and (C) any proposed revised debt amortization and schedules of Basic Rent, Stipulated Loss Value percentages and Termination Value percentages and any revised Special Purchase Price (including any installments thereof). The Refinancing Certificate shall not provide for a Debt/Equity ratio of more than 4:1. Within ten (10) Business Days of its receipt of the Administrator)Refinancing Certificate, Lessee may demand a verification of the information set forth in the Refinancing Certificate in the manner provided described in Section 3.7 of the Lease. Upon the acceptance by Lessee of the accuracy of the information set forth in the Indenture; PROVIDED that Refinancing Certificate or the Redemption Date for determination of such redemption shall be information pursuant to such verification procedures (such information, the first Payment Date "Refinancing Information") the appropriate parties will take the actions specified in subparagraphs (2) through (6) below;
(2) the appropriate parties will enter into a financing or loan agreement in form and substance reasonably satisfactory to the Owner Participant, the Owner Trustee and Lessee (which is at least 15 days after may involve an underwriting agreement in connection with a public offering of such debt or the date purchase of such debt by a publicly funded entity (or entities) or the sale of the Indenture Owner Trustee's delivery interest in the Trust Estate and/or the Aircraft and its simultaneous resale to the Owner Trustee) with the institution or PARTICIPATION AGREEMENT [N396SW] -53- 59 institutions to be named therein (A) providing for (i) the issuance and sale by the Owner Trustee to such institution or institutions on the Refinancing Date of such Redemption Notice.
debt securities (the "New Debt") in an aggregate principal amount specified in the Refinancing Information, (ii) If a Redemption Notice is delivered by the Indenture Trustee as provided hereinapplication of the proceeds of the sale of the New Debt, plus any additional contribution to the Indenture Trustee shallTrust Estate, by no later than to the 10th day before redemption of all such Certificates on the Redemption Refinancing Date and the payment of any other amounts payable to the Holders under the Operative Agreements on the Refinancing Date, notify and (iii) the Trusteepayment of the excess, Administrator if any, of such proceeds over the amount necessary to effect such redemption to the Owner Trustee for payment to the Owner Participant and (B) pursuant to which the parties to the refinancing transaction (including the Owner Participant and Lessee but excluding any public holders of debt) make such representations, warranties and covenants as the Owner Participant or Lessee may reasonably require;
(3) Lessee and the Swap Counterparty and arrange for Owner Trustee will amend the sale by the Administrator, Lease to provide that (i) Basic Rent payable in accordance with the Sale Procedures (as defined in the Indenture), of all respect of the Eligible Investments period from and Term Assets then held by after the Trust, for settlement on the Redemption Date. Any Sale Proceeds (as defined in the Indenture) realized from such sale Refinancing Date shall be deposited into the Collection Account for distribution as provided in the Refinancing Information (and shall take into account any variation of the Deferred Equity Amount paid by or on behalf of the Owner Participant pursuant to Section 8(dd), if applicable, from the corresponding Assumed Interest Amount with respect to the Deferred Equity Date), (ii) amounts payable in respect of Stipulated Loss Value and Termination Value from and after the Refinancing Date shall be as provided in the Refinancing Information, and (iii) in the event that the Series SWA 1995 Trust N396SW Certificates shall have been publicly issued, the early termination notice revocation and payment provisions shall be modified to comport with the applicable notice and payment requirements of The Depository Trust Company or any other depository;
(4) the Owner Trustee will enter into an agreement to provide for the securing of the New Debt in like manner as the Certificates and will enter into such amendments and supplements to the Trust Indenture (or such new indenture or other security agreement) as may be necessary to effect such security;
(5) unless otherwise agreed to by the Owner Participant (acting in its sole discretion) and whether or not such refunding or refinancing transaction is consummated, Lessee shall pay on a net after- tax basis all of the reasonable out-of-pocket expenses of all parties to such refunding or refinancing, including, without limitation, the reasonable fees and expenses of such parties' counsel (including allocated costs of the Original Loan Participant's in-house counsel) and any related loan or commitment fees; and
(6) subject to compliance by the Owner Trustee with all applicable terms and conditions for voluntary redemption under the Trust Indenture and this Agreement, each Holder of a Certificate being refinanced or refunded will transfer on the applicable Redemption Date to the Owner Trustee each Certificate held by it immediately prior to such refunding or refinancing for cancellation (and the Owner Trustee shall cancel the same), against simultaneous receipt by such Holder of payment for the then outstanding principal amount of such Certificate, accrued and unpaid PARTICIPATION AGREEMENT [N396SW] -54- 60 interest thereon, Premium, if any, plus in the case of the Series SWA 1995 Trust N396SW-I Certificates, Break Amount, if any, together with payment in full of all other amounts then payable to such Holder and the Indenture Trustee hereunder or under the Trust Indenture.
(b) In the case of a refunding or refinancing involving a public offering of the New Debt, the Owner Participant shall have the right (but not the obligation) to review and approve (which approval shall not be unreasonably withheld) any registration statement filed with the SEC to be employed in connection therewith. Any public offering of the New Debt shall not, except as required by Lessee, contain any restrictions on the sale to Holders who may use ERISA funding sources. It is expressly understood that the Owner Participant shall have no obligation hereunder to consent to such public refunding or refinancing if, in its good faith judgment, such refunding or refinancing increases its or any of its Affiliates' exposure to (i) liabilities under federal or state securities laws, (ii) regulation under state or federal securities laws, (iii) the need to disclose publicly information that is not generally available to the public, or (iv) being adversely affected in its ability to engage in any other financing transaction, in each case to a level unacceptable to it in its reasonable, good faith judgment. Any trustee of public debt shall be (i) Wilmington Trust Company or (ii) a bank or trust company in the United States and having a combined capital and surplus of at least $100,000,000, if there be such an institution willing, able and legally qualified to perform the duties of trustee upon reasonable or customary terms.
(c) Lessee shall give the Indenture Trustee at least thirty (30) days' irrevocable written notice of the proposed date of the optional refunding or refinancing.
(d) Anything in this Section 17 to the contrary notwithstanding, (i) all agreements and instruments to be executed and delivered by the Owner Participant or the Owner Trustee under this Section 17 shall be reasonably satisfactory in form and substance to the Owner Participant, (ii) no refinancing or refunding shall be consummated and neither the Owner Participant nor the Owner Trustee shall be required to execute and deliver any such agreement or instrument or to make any other arrangements which in its opinion would result in any unreimbursed increased costs or liability, including any adverse tax consequences or risk thereof (unless indemnified against to its reasonable satisfaction) or would have any other adverse effect on it, and (iii) the Owner Participant shall have no obligation to make any additional investment in connection with any such refinancing.
(e) Without the consent of the Owner Participant, there shall be no more than two optional refundings or refinancings under this Section 17.
(f) Any refunding or refinancing pursuant to this Section 17 shall be effected in accordance with Section 6.03(a) of the Trust Indenture.
(g) When calculating any of the information required to be set forth in a Refinancing Certificate, the Owner Participant shall make such calculations in a manner which (A) maintains its Net Economic Return, (B) minimizes the Net Present Value of Rents to the extent possible consistent with clause (A), (C) is consistent with Rev. Proc. 75-21 and Rev. Proc.
Section 1. 861-10T or any successor thereto and uses the same methodology and assumptions used by the Owner Participant in determining Basic Rent, Stipulated Loss Values, Termination Values and Special Purchase Price on the Delivery Date (except to the extent such assumptions have been altered since the Delivery Date in connection with an adjustment to Rent pursuant to Section 3.7 of the Lease).
(h) No refinancing or refunding pursuant to this Section 17 shall be permitted prior to the second anniversary of the Delivery Date or during the continuance of a Lease Default or a Lease Event of Default.
Appears in 1 contract
Optional Redemption of Certificates. (ia) If on any Distribution DateSubject to paragraph (d) below, before giving effect to any distributions to be made on such date, in the aggregate outstanding principal amount of the Term Assets would be less than 10% of the Initial Principal Amount of the Term Assets, the Swap Counterparty may, at its option, by delivering a event that Lessee shall have given written notice to the Indenture Trustee pursuant to Owner Trustee, the Indenture (with a copy to the Trustee and the Administrator), direct the Owner Participant requesting that there be effected a voluntary redemption of all of the outstanding Notes and Outstanding Certificates at their Redemption Price. If by the Swap Counterparty so delivers Owner Trustee as part of a written notice of redemption refunding or refinancing transaction, the Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with Lessee as to the Indenture Trusteeterms of such refunding or refinancing transaction (including the terms of any debt to be issued in connection with such refunding or refinancing transaction and the documentation to be executed in connection therewith), and if after such good faith negotiation Lessee and the Owner Participant shall have concluded an agreement with respect to such terms:
(1) within ten (10) Business Days after the reaching of such agreement, the Indenture Trustee Owner Participant will deliver to Lessee a certificate of an authorized representative of the Owner Participant (the "Refinancing Certificate") setting forth (i) the proposed date on which the Outstanding Certificates will be redeemed, describing the new debt to be issued and the other aspects of such refunding or refinancing transaction to be consummated (such date, the "Refinancing Date", which date shall deliver a notice be determined so as to comply with Section 6.03(a) of redemption the Trust Indenture) and (ii) the following information: (A) subject to each Noteholder and Certificateholder the limitations set forth in this Section 17, the proposed adjusted ratio of debt evidenced by the Certificates to the Owner Participant's investment in the beneficial ownership of the Aircraft (a such ratio, the "Redemption NoticeDebt/Equity Ratio"), (with a copy B) the principal amount of debt to be issued by the Owner Trustee on the Refinancing Date, and (C) the proposed revised debt amortization and schedules of Interim Rent, Basic Rent, Stipulated Loss Value percentages and Termination Value percentages and the Administratorrevised Special Purchase Price (including any installments thereof). The Refinancing Certificate shall not provide for a Debt/Equity ratio of more than 4:1. Within ten (10) Business Days of its receipt of the Refinancing Certificate, Lessee may demand a verification of the information set forth in the Refinancing Certificate in the manner provided described in Section 3.7 of the Lease. Upon the acceptance by Lessee of the accuracy of the information set forth in the Indenture; PROVIDED that Refinancing Certificate or the Redemption determination of such information pursuant to such verification procedures PARTICIPATION AGREEMENT [N604SW] -48- 54 (such information, the "Refinancing Information") the appropriate parties will take the actions specified in subparagraphs (2) through (6) below;
(2) the appropriate parties will enter into a financing or loan agreement in form and substance reasonably satisfactory to the Owner Participant, the Owner Trustee and Lessee (which may involve an underwriting agreement in connection with a public offering of such debt or the purchase of such debt by a publicly funded entity (or entities)) with the institution or institutions to be named therein (A) providing for (i) the issuance and sale by the Owner Trustee to such institution or institutions on the Refinancing Date for such redemption of debt securities in an aggregate principal amount specified in the Refinancing Information, which amount shall be the first Payment Date which is at least 15 days after equal to the date aggregate principal amount of all Certificates Outstanding on the Indenture Trustee's delivery of Refinancing Date (such Redemption Notice.
debt securities, the "New Debt"), (ii) If a Redemption Notice is delivered by the Indenture Trustee as provided herein, application of the Indenture Trustee shall, by no later than proceeds of the 10th day before sale of the Redemption New Debt to the redemption of all such Certificates on the Refinancing Date and the payment of any other amounts payable to the Holders under the Operative Agreements on the Refinancing Date, notify and (iii) the Trusteepayment of the excess, Administrator if any, of such proceeds over the amount necessary to effect such redemption to the Owner Trustee for payment to the Owner Participant and (B) pursuant to which the parties to the refinancing transaction (including the Owner Participant and Lessee but excluding any public holders of debt) make such representations, warranties and covenants as the Owner Participant or Lessee may reasonably require;
(3) Lessee and the Swap Counterparty Owner Trustee will amend the Lease to provide that (i) Interim Rent (if applicable) and arrange for the sale by the Administrator, Basic Rent payable in accordance with the Sale Procedures (as defined in the Indenture), of all respect of the Eligible Investments period from and Term Assets then held by after the Trust, for settlement on the Redemption Date. Any Sale Proceeds (as defined in the Indenture) realized from such sale Refinancing Date shall be deposited into the Collection Account for distribution as provided in the Refinancing Information (and shall take into account any variation of either Deferred Equity Amount paid by or on behalf of the Owner Participant pursuant to Section 8(dd), if applicable, from the corresponding Assumed Interest Amount with respect to the Deferred Equity Date or the first Rent Payment Date, as the case may be), (ii) amounts payable in respect of Stipulated Loss Value and Termination Value from and after the Refinancing Date shall be as provided in the Refinancing Information, and (iii) in the event that the Series SWA 1995 Trust N604SW Certificates shall have been publicly issued, the early termination notice revocation and payment provisions shall be modified to comport with the applicable notice and payment requirements of The Depository Trust Company or any other depository;
(4) the Owner Trustee will enter into an agreement to provide for the securing thereunder of the New Debt in like manner as the Certificates and will enter into such amendments and supplements to the Trust Indenture (or such new indenture or other security agreement) as may be necessary to effect such security;
(5) unless otherwise agreed to or required by the Owner Participant to be paid as a Transaction Cost and whether or not such refunding or refinancing transaction is consummated, Lessee shall pay at no net after-tax cost to any other party all of the reasonable out-of-pocket expenses of all parties to such refunding or refinancing, including without limitation, the reasonable fees and expenses of such parties' counsel and any related loan or commitment fees; and
(6) subject to compliance by the Owner Trustee with all applicable terms and conditions for voluntary redemption under the Trust Indenture and this Agreement, each Holder of a Certificate being refinanced or refunded will transfer on the applicable Redemption Date to the Owner Trustee each Certificate held by it immediately prior to such refunding or refinancing for cancellation (and the Owner Trustee shall cancel the same), against simultaneous receipt by such Holder of payment for the then outstanding principal amount of such Certificate, accrued and unpaid interest thereon, Premium, if any, plus in the case of the Series SWA 1995 Trust N604SW-I Certificates, Break Amount, if any, together with payment in full of all other amounts then payable to such Holder and the Indenture Trustee hereunder or under the Trust Indenture.
(b) In the case of a refunding or refinancing involving a public offering of the New Debt, the Owner Participant shall have the right (but not the obligation) to review and approve (which approval shall not be unreasonably withheld) any registration statement filed with the SEC to be employed in connection therewith. Any public offering of the New Debt shall not, except as required by Lessee, contain any restrictions on the sale to Holders who may use ERISA funding sources. It is expressly understood that the Owner Participant shall have no obligation hereunder to consent to such public refunding or refinancing if, in its good faith judgment, such refunding or refinancing increases its or any of its Affiliates' exposure to (i) liabilities under federal or state securities laws, (ii) regulation under state or federal securities laws, (iii) the need to disclose publicly information that is not generally available to the public, or (iv) being adversely affected in its ability to engage in any other financing transaction, in each case to a level unacceptable to it in its reasonable, good faith judgment. Any trustee of public debt shall be (i) Wilmington Trust Company or (ii) a bank or trust company in the United States and having a combined capital and surplus of at least $100,000,000, if there be such an institution willing, able and legally qualified to perform the duties of trustee upon reasonable or customary terms.
(c) Lessee shall give the Indenture Trustee at least thirty (30) days' irrevocable written notice of the proposed date of the optional refunding or refinancing.
(d) Anything in this Section 17 to the contrary notwithstanding, (i) all agreements and instruments to be executed and delivered by the Owner Participant or the Owner Trustee under this Section 17 shall be reasonably satisfactory in form and substance to the Owner Participant, (ii) neither Owner Participant nor the Owner Trustee shall be required to execute and deliver any such agreement or instrument or to make any other arrangements which in its opinion would result in any unreimbursed increased costs or liability, including any adverse tax consequences or risk thereof (unless indemnified against to its reasonable satisfaction) or would result in any other material detriment or disadvantage to it, and (iii) the Owner Participant shall have no obligation to make any additional investment in connection with any such refinancing.
(e) Without the consent of the Owner Participant, there shall be no more than two optional refundings or refinancings under this Section 17.
(f) Any refunding or refinancing pursuant to this Section 17 shall be of all Certificates then Outstanding and shall be effected in accordance with Section 6.03(a) of the Trust Indenture. PARTICIPATION AGREEMENT [N604SW] -50- 56 (g) When calculating any of the information required to be set forth in a Refinancing Certificate, the Owner Participant shall make such calculations in a manner which (A) maintains its Net Economic Return, (B) minimizes the Net Present Value of Rents to the extent possible consistent with clause (A), (C) is consistent with Rev. Proc. 75-21 and Rev. Proc. 75-28 (or any successor thereto) and would not cause the Lease to constitute a "disqualified leaseback or long term agreement" within the meaning of Section 467 of the Code (or any successor thereto), and (D) uses the same methodology and assumptions used by the Owner Participant in determining Interim Rent, Basic Rent, Stipulated Loss Values, Termination Values and Special Purchase Price on the Delivery Date (except to the extent such assumptions have been altered since the Delivery Date in connection with an adjustment to Rent pursuant to Section 3.7 of the Lease).
Appears in 1 contract
Optional Redemption of Certificates. (ia) If on any Distribution DateSubject to paragraph (d) below, before giving effect to any distributions to be made on such date, in the aggregate outstanding principal amount of the Term Assets would be less than 10% of the Initial Principal Amount of the Term Assets, the Swap Counterparty may, at its option, by delivering a event that Lessee shall have given written notice to the Indenture Trustee pursuant to the Indenture (with a copy to the Trustee and the Administrator), direct the redemption of all of the outstanding Notes and Certificates at their Redemption Price. If the Swap Counterparty so delivers a written notice of redemption to the Indenture Owner Trustee, the Indenture Trustee and the Owner Participant requesting that there be effected a voluntary redemption of the Outstanding Certificates by the Owner Trustee as part of a refunding or refinancing transaction, the Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with Lessee as to the terms of such refunding or refinancing transaction (including the terms of any debt to be issued in connection with such refunding or refinancing transaction and the documentation to be executed in connection therewith), and if after such good faith negotiation Lessee and the Owner Participant shall have concluded an agreement with respect to such terms:
(1) within ten (10) Business Days after the reaching of such agreement, the Owner Participant will deliver to Lessee a notice certificate of redemption an authorized representative of the Owner Participant (the "Refinancing Certificate") setting forth (i) the proposed date on which the Outstanding Certificates will be redeemed, describing the new debt to each Noteholder be issued and Certificateholder the other aspects of such refunding or refinancing transaction to be consummated (a such date, the "Redemption NoticeRefinancing Date", which date shall be determined so as to comply with Section 6.03(a) of the Trust Indenture) and (ii) the following information: (A) subject to the limitations set forth in this Section 17, the proposed adjusted ratio of debt evidenced by the Certificates to the Owner Participant's investment in the beneficial ownership of the Aircraft (such ratio, the "Debt/Equity Ratio"), (with a copy B) the principal amount of debt to be issued by the Owner Trustee on the Refinancing Date, and (C) the proposed revised debt amortization and schedules of Basic Rent, Stipulated Loss Value percentages and Termination Value percentages and the Administratorrevised Special Purchase Price (including any installments thereof). The Refinancing Certificate shall not provide for a Debt/Equity ratio of more than 4:1. Within ten (10) Business Days of its receipt of the Refinancing Certificate, Lessee may demand a verification of the information set forth in the Refinancing Certificate in the manner provided described in Section 3.7 of the Lease. Upon the acceptance by Lessee of the accuracy of the information set forth in the Indenture; PROVIDED that Refinancing Certificate or the Redemption determination of such information pursuant to such verification procedures (such information, the "Refinancing Information") the appropriate parties will take the actions specified in subparagraphs (2) through (6) below;
(2) the appropriate parties will enter into a financing or loan agreement in form and substance reasonably satisfactory to the Owner Participant, the Owner Trustee and Lessee (which may involve an underwriting agreement in connection with a public offering of such debt or the purchase of such debt by a publicly funded entity (or entities) or the sale of the Owner Trustee's interest in the Trust Estate and/or the Aircraft and its simultaneous resale to the Owner Trustee) with the institution or institutions to be named therein (A) providing for (i) the issuance and sale by the Owner Trustee to such institution or institutions on the Refinancing Date for such redemption of debt securities in an aggregate principal amount specified in the Refinancing Information, which amount shall be the first Payment Date which is at least 15 days after equal to the date aggregate principal amount of all Certificates Outstanding on the Indenture Trustee's delivery of Refinancing Date (such Redemption Notice.
debt securities, the "New PARTICIPATION AGREEMENT [N620SW] -48- 54 Debt"), (ii) If a Redemption Notice is delivered by the Indenture Trustee as provided herein, application of the Indenture Trustee shall, by no later than proceeds of the 10th day before sale of the Redemption New Debt to the redemption of all such Certificates on the Refinancing Date and the payment of any other amounts payable to the Holders under the Operative Agreements on the Refinancing Date, notify and (iii) the Trusteepayment of the excess, Administrator if any, of such proceeds over the amount necessary to effect such redemption to the Owner Trustee for payment to the Owner Participant and (B) pursuant to which the parties to the refinancing transaction (including the Owner Participant and Lessee but excluding any public holders of debt) make such representations, warranties and covenants as the Owner Participant or Lessee may reasonably require;
(3) Lessee and the Swap Counterparty and arrange for Owner Trustee will amend the sale by the Administrator, Lease to provide that (i) Basic Rent payable in accordance with the Sale Procedures (as defined in the Indenture), of all respect of the Eligible Investments period from and Term Assets then held by after the Trust, for settlement on the Redemption Date. Any Sale Proceeds (as defined in the Indenture) realized from such sale Refinancing Date shall be deposited into the Collection Account for distribution as provided in the Refinancing Information, (ii) amounts payable in respect of Stipulated Loss Value and Termination Value from and after the Refinancing Date shall be as provided in the Refinancing Information, and (iii) in the event that the Series SWA 1996 Trust N620SW Certificates shall have been publicly issued, the early termination notice revocation and payment provisions shall be modified to comport with the applicable notice and payment requirements of The Depository Trust Company or any other depository;
(4) the Owner Trustee will enter into an agreement to provide for the securing thereunder of the New Debt in like manner as the Certificates and will enter into such amendments and supplements to the Trust Indenture (or such new indenture or other security agreement) as may be necessary to effect such security;
(5) unless otherwise agreed to or required by the Owner Participant to be paid as a Transaction Cost and whether or not such refunding or refinancing transaction is consummated, Lessee shall pay on a net after-tax basis all of the reasonable out-of-pocket expenses of all parties to such refunding or refinancing, including, without limitation, the reasonable fees and expenses of such parties' counsel (including allocated costs of the Original Loan Participant's in-house counsel) and any related loan or commitment fees;
(6) subject to compliance by the Owner Trustee with all applicable terms and conditions for voluntary redemption under the Trust Indenture and this Agreement, each Holder of a Certificate being refinanced or refunded will transfer on the applicable Redemption Date to the Owner Trustee each Certificate held by it immediately prior to such refunding or refinancing for cancellation (and the Owner Trustee shall cancel the same), against simultaneous receipt by such Holder of payment for the then outstanding principal amount of such Certificate, accrued and unpaid interest thereon, Premium, if any, plus in the case of the Series SWA 1996 Trust N620SW-I Certificates, Break Amount, if any, together with payment in full of all other amounts then payable to such Holder and the Indenture Trustee hereunder or under the Trust Indenture; and
(7) the Owner Participant's obligations under this Section 17(a) may be discharged by the appointment of an investment banker satisfactory to Lessee.
(b) In the case of a refunding or refinancing involving a public offering of the New Debt, the Owner Participant shall have the right (but not the obligation) to review and approve (which PARTICIPATION AGREEMENT [N620SW] -49- 55 approval shall not be unreasonably withheld) any registration statement filed with the SEC to be employed in connection therewith. Any public offering of the New Debt shall not, except as required by Lessee, contain any restrictions on the sale to Holders who may use ERISA funding sources. It is expressly understood that the Owner Participant shall have no obligation hereunder to consent to such public refunding or refinancing if, in its good faith judgment, such refunding or refinancing increases its or any of its Affiliates' exposure to (i) liabilities under federal or state securities laws, (ii) regulation under state or federal securities laws, (iii) the need to disclose publicly information that is not generally available to the public, or (iv) being adversely affected in its ability to engage in any other financing transaction, in each case to a level unacceptable to it in its reasonable, good faith judgment. Any trustee of public debt shall be (i) Wilmington Trust Company or (ii) a bank or trust company in the United States and having a combined capital and surplus of at least $100,000,000, if there be such an institution willing, able and legally qualified to perform the duties of trustee upon reasonable or customary terms.
(c) Lessee shall give the Indenture Trustee at least thirty (30) days' irrevocable written notice of the proposed date of the optional refunding or refinancing.
(d) Anything in this Section 17 to the contrary notwithstanding, (i) all agreements and instruments to be executed and delivered by the Owner Participant or the Owner Trustee under this Section 17 shall be reasonably satisfactory in form and substance to the Owner Participant, (ii) neither Owner Participant nor the Owner Trustee shall be required to execute and deliver any such agreement or instrument or to make any other arrangements which in its opinion would result in any unreimbursed increased costs or liability, including any adverse tax consequences or risk thereof (unless indemnified against to its reasonable satisfaction) or would result in any other material detriment or disadvantage to it, and (iii) the Owner Participant shall have no obligation to make any additional investment in connection with any such refinancing.
(e) Without the consent of the Owner Participant, there shall be no more than two optional refundings or refinancings under this Section 17.
(f) Any refunding or refinancing pursuant to this Section 17 shall be of all Certificates then Outstanding and shall be effected in accordance with Section 6.03(a) of the Trust Indenture.
(g) When calculating any of the information required to be set forth in a Refinancing Certificate, the Owner Participant shall make such calculations in a manner which (A) maintains its Net Economic Return, (B) minimizes the Net Present Value of Rents to the extent possible consistent with clause (A), (C) is consistent with Rev. Proc. 75-21 and Rev. Proc. 75-28 (or any successor thereto) and would not cause the Lease to constitute a "disqualified leaseback or long term agreement" within the meaning of Section 467 of the Code (or any successor thereto), and (D) uses the same methodology and assumptions used by the Owner Participant in determining Basic Rent, Stipulated Loss Values, Termination Values and Special Purchase Price on the Delivery Date (except to the extent such assumptions have been altered since the Delivery Date in connection with an adjustment to Rent pursuant to Section 3.7 of the Lease). PARTICIPATION AGREEMENT [N620SW] -50- 56 (h) No refinancing or refunding pursuant to this Section 17 shall be permitted during the continuance of a Lease Default or a Lease Event of Default.
Appears in 1 contract
Optional Redemption of Certificates. (a) Subject to ----------------------------------- subparagraph (d) below, in the event that at any time Lessee shall have given written notice to Lessor, Owner Participant and the Indenture Trustee that there be effected a voluntary redemption of the Certificates in compliance with the provisions of Section 6.01(c) of the Trust Indenture by Lessor as part of a refunding or refinancing transaction Lessor agrees to negotiate promptly in good faith to conclude an agreement, in form and substance reasonably satisfactory to Owner Participant, with Lessee as to the terms of such refunding or refinancing transaction (including the terms of any debt to be issued in connection with such refunding or refinancing transaction and the documentation to be executed in connection therewith), and if after such good faith negotiation Lessee and Owner Participant shall have concluded an agreement, in form and substance reasonably satisfactory to Owner Participant and Lessee, with respect to such terms:
(1) within ten Business Days after the reaching of such agreement, Owner Participant will deliver to Lessee a certificate of an authorized representative of Owner Participant (the "Refinancing Certificate") setting forth (i) If the proposed date on any Distribution Date, before giving effect to any distributions to which the outstanding Certificates will be made on redeemed (such date, the "Refinancing Date") and describing the new debt to be issued and the other aspects of such refunding or refinancing transaction and (ii) the following information calculated pursuant to the provisions of this Section 17(a): (A) subject to the limitations set forth in this Section 17, the proposed adjusted ratio of the debt evidenced by the Certificates to Owner Participant's investment in its interest in the Aircraft (such ratio, the "Debt/Equity Ratio"), (B) the principal amount of debt to be issued by Lessor on the Refinancing Date, (C) the amount, if any, by which Owner Participant's aggregate investment in its interest in the Aircraft is to be decreased and (D) the proposed revised schedules of Basic Rent, Excess Amount, debt amortization, Stipulated Loss Value percentages and Termination Value percentages, which shall be calculated so as to maintain Net Economic Return. The Refinancing Certificate shall not provide for a Debt/Equity Ratio of more than 4:1. Within ten Business Days of its receipt of the Refinancing Certificate, Lessee may demand a verification pursuant to Exhibit E to the Lease of the information set forth in the Refinancing Certificate. Upon the acceptance by Lessee of the accuracy of the information set forth in the Refinancing Certificate or the determination pursuant to such verification procedures of the revised Basic Rent, Excess Amount, debt amortization, Stipulated Loss Value percentages and Termination Value percentages and the Debt/Equity Ratio (such information, the "Refinancing Information") the appropriate parties will take the actions specified in paragraphs (ii) through (vi) below;
(2) the appropriate parties will enter into a financing or loan agreement in form and substance reasonably satisfactory to Owner Participant and Lessee (which may involve an underwriting agreement in connection with a public offering of such debt or the purchase of such debt by a publicly funded entity (or entities) or, if Owner Participant so agrees, the sale of Lessor's interest in the Aircraft and its resale to Lessor) with the institution or institutions to be named therein providing for (i) the issuance and sale by Lessor to such institution or institutions on the Refinancing Date of debt securities in an aggregate principal amount specified in the Refinancing Information, which amount shall be at least equal to the aggregate principal amount of all Certificates outstanding on the Refinancing Date (such debt securities, the "New Debt"), (ii) the application of the proceeds of the sale of the New Debt to the redemption of all such Certificates on the Refinancing Date and (iii) the payment of the excess, if any, of such proceeds over the amounts necessary to effect such redemption to Lessor;
(3) Lessee and Lessor will amend the Lease to provide that (i) Basic Rent and Excess Amount payable in respect of the period from and after the Refinancing Date shall be as provided in the Refinancing Information and (ii) amounts payable in respect of Stipulated Loss Value and Termination Value from and after the Refinancing Date shall be as provided in the Refinancing Information;
(4) Lessor will enter into an agreement in form and substance reasonably satisfactory to Owner Participant to provide for the securing thereunder of the New Debt in like manner as the Certificates and will enter into such amendments and supplements to the Trust Indenture (or such new indenture or other security agreement) as may be necessary to effect such refunding or refinancing;
(5) unless otherwise agreed or required by Owner Participant, and whether or not such refunding or refinancing transaction is consummated, Lessee shall pay, without cost, on a net after-tax basis, to Owner Participant, all of the reasonable expenses of all parties to such refunding or refinancing, including without limitation, the reasonable fees and expenses of such parties' counsel and Owner Participant's, and any related loan or commitment, fees; and
(6) subject to compliance by Lessor with all applicable terms and conditions for voluntary prepayment under the Trust Indenture and this Agreement (which compliance may be conditioned on compliance by Lessee with all applicable provisions of the Lease and payment of all amounts due thereunder in connection therewith), no sooner than thirty days after the giving of the notice referred to in the lead-in paragraph of this Section 17, each Certificate Holder will transfer to Lessor the Certificates held by it immediately prior to such refunding or refinancing for cancellation (and Lessor shall cancel the same), against receipt of the then outstanding principal amount of the Term Assets would be less than 10% such Certificates, accrued and unpaid interest thereon, plus premium, if any, together with payment in full of the Initial Principal Amount of the Term Assets, the Swap Counterparty may, at its option, by delivering a written notice all other amounts then payable to such Certificate Holder and the Indenture Trustee pursuant to hereunder or under the Indenture (with a copy to the Trustee and the Administrator), direct the redemption of all of the outstanding Notes and Certificates at their Redemption Price. If the Swap Counterparty so delivers a written notice of redemption to the Indenture Trustee, the Indenture Trustee shall deliver a notice of redemption to each Noteholder and Certificateholder (a "Redemption Notice"), (with a copy to the Trustee and the Administrator), in the manner provided in the Indenture; PROVIDED that the Redemption Date for such redemption shall be the first Payment Date which is at least 15 days after the date of the Indenture Trustee's delivery of such Redemption Notice.
(ii) If a Redemption Notice is delivered by the Indenture Trustee as provided herein, the Indenture Trustee shall, by no later than the 10th day before the Redemption Date, notify the Trustee, Administrator and the Swap Counterparty and arrange for the sale by the Administrator, in accordance with the Sale Procedures (as defined in the Indenture), of all of the Eligible Investments and Term Assets then held by the Trust, for settlement on the Redemption Date. Any Sale Proceeds (as defined in the Indenture) realized from such sale shall be deposited into the Collection Account for distribution as provided in the Trust Indenture.
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Optional Redemption of Certificates. (ia) If on any Distribution DateSubject to paragraph (d) below, before giving effect to any distributions to be made on such date, in the aggregate outstanding principal amount of the Term Assets would be less than 10% of the Initial Principal Amount of the Term Assets, the Swap Counterparty may, at its option, by delivering a event that Lessee shall have given written notice to the Indenture Trustee pursuant to the Indenture (with a copy to the Trustee and the Administrator), direct the redemption of all of the outstanding Notes and Certificates at their Redemption Price. If the Swap Counterparty so delivers a written notice of redemption to the Indenture Owner Trustee, the Indenture Trustee and the Owner Participant requesting that there be effected a voluntary redemption of all or part of the Outstanding Certificates by the Owner Trustee as part of a refunding or refinancing transaction, the Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with Lessee as to the terms of such refunding or refinancing transaction (including the terms of any debt to be issued in connection with such refunding or refinancing transaction and the documentation to be executed in connection therewith), and if after such good faith negotiation Lessee and the Owner Participant shall have concluded an agreement with respect to such terms:
(1) within ten (10) Business Days after the reaching of such agreement, the Owner Participant will deliver to Lessee a notice certificate of redemption an authorized representative of the Owner Participant (the "Refinancing Certificate") setting forth (i) the proposed date on which the Outstanding Certificates will be redeemed, describing the new debt to each Noteholder be issued and Certificateholder the other aspects of such refunding or refinancing transaction to be consummated (a such date, the "Redemption NoticeRefinancing Date", which date shall be determined so as to comply with Section 6.03(a) of the Trust Indenture) and (ii) the following information: (A) subject to the limitations set forth in this Section 17, any proposed adjusted ratio of debt evidenced by the Certificates to the Owner Participant's investment in the beneficial ownership of the Aircraft (such ratio, the "Debt/Equity Ratio"), (with a copy B) the principal amount of debt to be issued by the Owner Trustee on the Refinancing Date and, if such amount is less than the aggregate principal amount of the Outstanding Certificates (as the Owner Participant may agree in its sole discretion) the amount of any additional contribution to the Trustee Trust Estate to be made by the Owner Participant on the Refinancing Date, and (C) any proposed revised debt amortization and schedules of Basic Rent, Stipulated Loss Value percentages and Termination Value percentages and any revised Special Purchase Price (including any installments thereof). The Refinancing Certificate shall not provide for a Debt/Equity ratio of more than 4:1. Within ten (10) Business Days of its receipt of the Administrator)Refinancing Certificate, Lessee may demand a verification of the information set forth in the Refinancing Certificate in the manner provided described in Section 3.7 of the Lease. Upon the acceptance by Lessee of the accuracy of the information set forth in the Indenture; PROVIDED that Refinancing Certificate or the Redemption Date for determination of such redemption shall be information pursuant to such verification procedures (such information, the first Payment Date "Refinancing Information") the appropriate parties will take the actions specified in subparagraphs (2) through (6) below;
(2) the appropriate parties will enter into a financing or loan agreement in form and substance reasonably satisfactory to the Owner Participant, the Owner Trustee and Lessee (which is at least 15 days after may involve an underwriting agreement in connection with a public offering of such debt or the date purchase of such debt by a publicly funded entity (or entities) or the sale of the Indenture Owner Trustee's delivery interest in the Trust Estate and/or the Aircraft and its simultaneous resale to the Owner Trustee) with the institution or PARTICIPATION AGREEMENT [N397SW] -53- 59 institutions to be named therein (A) providing for (i) the issuance and sale by the Owner Trustee to such institution or institutions on the Refinancing Date of such Redemption Notice.
debt securities (the "New Debt") in an aggregate principal amount specified in the Refinancing Information, (ii) If a Redemption Notice is delivered by the Indenture Trustee as provided hereinapplication of the proceeds of the sale of the New Debt, plus any additional contribution to the Indenture Trustee shallTrust Estate, by no later than to the 10th day before redemption of all such Certificates on the Redemption Refinancing Date and the payment of any other amounts payable to the Holders under the Operative Agreements on the Refinancing Date, notify and (iii) the Trusteepayment of the excess, Administrator if any, of such proceeds over the amount necessary to effect such redemption to the Owner Trustee for payment to the Owner Participant and (B) pursuant to which the parties to the refinancing transaction (including the Owner Participant and Lessee but excluding any public holders of debt) make such representations, warranties and covenants as the Owner Participant or Lessee may reasonably require;
(3) Lessee and the Swap Counterparty and arrange for Owner Trustee will amend the sale by the Administrator, Lease to provide that (i) Basic Rent payable in accordance with the Sale Procedures (as defined in the Indenture), of all respect of the Eligible Investments period from and Term Assets then held by after the Trust, for settlement on the Redemption Date. Any Sale Proceeds (as defined in the Indenture) realized from such sale Refinancing Date shall be deposited into the Collection Account for distribution as provided in the Refinancing Information (and shall take into account any variation of the Deferred Equity Amount paid by or on behalf of the Owner Participant pursuant to Section 8(dd), if applicable, from the corresponding Assumed Interest Amount with respect to the Deferred Equity Date), (ii) amounts payable in respect of Stipulated Loss Value and Termination Value from and after the Refinancing Date shall be as provided in the Refinancing Information, and (iii) in the event that the Series SWA 1995 Trust N397SW Certificates shall have been publicly issued, the early termination notice revocation and payment provisions shall be modified to comport with the applicable notice and payment requirements of The Depository Trust Company or any other depository;
(4) the Owner Trustee will enter into an agreement to provide for the securing of the New Debt in like manner as the Certificates and will enter into such amendments and supplements to the Trust Indenture (or such new indenture or other security agreement) as may be necessary to effect such security;
(5) unless otherwise agreed to by the Owner Participant (acting in its sole discretion) and whether or not such refunding or refinancing transaction is consummated, Lessee shall pay on a net after-tax basis all of the reasonable out-of-pocket expenses of all parties to such refunding or refinancing, including, without limitation, the reasonable fees and expenses of such parties' counsel (including allocated costs of the Original Loan Participant's in-house counsel) and any related loan or commitment fees; and
(6) subject to compliance by the Owner Trustee with all applicable terms and conditions for voluntary redemption under the Trust Indenture and this Agreement, each Holder of a Certificate being refinanced or refunded will transfer on the applicable Redemption Date to the Owner Trustee each Certificate held by it immediately prior to such refunding or refinancing for cancellation (and the Owner Trustee shall cancel the same), against simultaneous receipt by such Holder of payment for the then outstanding principal amount of such Certificate, accrued and unpaid PARTICIPATION AGREEMENT [N397SW] -54- 60 interest thereon, Premium, if any, plus in the case of the Series SWA 1995 Trust N397SW-I Certificates, Break Amount, if any, together with payment in full of all other amounts then payable to such Holder and the Indenture Trustee hereunder or under the Trust Indenture.
(b) In the case of a refunding or refinancing involving a public offering of the New Debt, the Owner Participant shall have the right (but not the obligation) to review and approve (which approval shall not be unreasonably withheld) any registration statement filed with the SEC to be employed in connection therewith. Any public offering of the New Debt shall not, except as required by Lessee, contain any restrictions on the sale to Holders who may use ERISA funding sources. It is expressly understood that the Owner Participant shall have no obligation hereunder to consent to such public refunding or refinancing if, in its good faith judgment, such refunding or refinancing increases its or any of its Affiliates' exposure to (i) liabilities under federal or state securities laws, (ii) regulation under state or federal securities laws, (iii) the need to disclose publicly information that is not generally available to the public, or (iv) being adversely affected in its ability to engage in any other financing transaction, in each case to a level unacceptable to it in its reasonable, good faith judgment. Any trustee of public debt shall be (i) Wilmington Trust Company or (ii) a bank or trust company in the United States and having a combined capital and surplus of at least $100,000,000, if there be such an institution willing, able and legally qualified to perform the duties of trustee upon reasonable or customary terms.
(c) Lessee shall give the Indenture Trustee at least thirty (30) days' irrevocable written notice of the proposed date of the optional refunding or refinancing.
(d) Anything in this Section 17 to the contrary notwithstanding, (i) all agreements and instruments to be executed and delivered by the Owner Participant or the Owner Trustee under this Section 17 shall be reasonably satisfactory in form and substance to the Owner Participant, (ii) no refinancing or refunding shall be consummated and neither the Owner Participant nor the Owner Trustee shall be required to execute and deliver any such agreement or instrument or to make any other arrangements which in its opinion would result in any unreimbursed increased costs or liability, including any adverse tax consequences or risk thereof (unless indemnified against to its reasonable satisfaction) or would have any other adverse effect on it, and (iii) the Owner Participant shall have no obligation to make any additional investment in connection with any such refinancing.
(e) Without the consent of the Owner Participant, there shall be no more than two optional refundings or refinancings under this Section 17.
(f) Any refunding or refinancing pursuant to this Section 17 shall be effected in accordance with Section 6.03(a) of the Trust Indenture.
(g) When calculating any of the information required to be set forth in a Refinancing Certificate, the Owner Participant shall make such calculations in a manner which (A) maintains its Net Economic Return, (B) minimizes the Net Present Value of Rents to the extent possible consistent with clause (A), (C) is consistent with Rev. Proc. 75-21 and Rev. Proc.
Section 1. 861-10T or any successor thereto and uses the same methodology and assumptions used by the Owner Participant in determining Basic Rent, Stipulated Loss Values, Termination Values and Special Purchase Price on the Delivery Date (except to the extent such assumptions have been altered since the Delivery Date in connection with an adjustment to Rent pursuant to Section 3.7 of the Lease).
(h) No refinancing or refunding pursuant to this Section 17 shall be permitted prior to the second anniversary of the Delivery Date or during the continuance of a Lease Default or a Lease Event of Default.
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