Optional Refinancing of Lease Debt. The Facility Lessee shall have the right, exercisable at any time on no more than three occasions, to request the Owner Lessor (and the Owner Lessor shall reasonably consider and not unreasonably withhold its consent), to refund or refinance the Lease Debt, in whole but not in part, through the issuance of Additional Lessor Notes; provided that all conditions to the issuance of such Additional Lessor Notes contained in Section 2.12 of the Collateral Trust Indenture shall have been satisfied and all applicable Make-Whole Amounts shall have been paid. Any refinancing under this Section 11.2 shall also be subject to satisfaction of the following additional conditions: the Owner Lessor shall be able to issue and sell such debt in an amount adequate to accomplish such refunding or refinancing; with respect to the refinancing of the Initial Lessor Notes of a particular maturity, such Additional Lessor Notes shall have a final maturity no later than the final maturity date of such Initial Lessor Notes and will be fully repaid out of Basic Rent during the Facility Lease Term; appropriate adjustments to Basic Rent and Termination Value shall be made to preserve the Owner Participant's Net Economic Return; provided that no adjustments shall be made to the amortization schedule; no Significant Lease Default or Lease Event of Default shall have occurred and be continuing; the Owner Participant shall suffer no adverse accounting effects under GAAP; the Facility Lessee shall have made or delivered such representations, warranties, covenants, opinions and certificates as the Owner Participant may reasonably request, which representations, warranties, covenants and agreements shall be of no greater scope than those provided by the Facility Lessee on the Closing Date under the Operative Documents to which it is a party (except to the extent necessitated by differences between existing Operative Documents and the terms and conditions of the proposed refinancing); all documentation in connection with such refinancing shall be reasonably satisfactory to the Owner Lessor and the Owner Participant; the Owner Participant shall receive a consent fee of $100,000 in the aggregate for each refinancing after the first such refinancing; the Lease Debt as financed constitutes qualified nonrecourse indebtedness within the meaning of Treasury Regulations Section 1-861-10T(b) and the Owner Participant shall have received an opinion satisfactory to it to such effect; and the Owner Participant shall receive an opinion satisfactory to it that the refinancing (as opposed to the right to request such refinancing) shall not result in any incremental tax risk not indemnified to the Owner Participant's satisfaction. Calpine shall have affirmed in writing to the Transaction Parties that the Calpine Guaranty covers the additional indebtedness contemplated by this Section 11.2.
Appears in 7 contracts
Samples: Participation Agreement (Calpine Corp), Participation Agreement (Calpine Corp), Participation Agreement (Calpine Corp)
Optional Refinancing of Lease Debt. The Facility Lessee shall have the right, exercisable at any time on no more than three occasions, to request the Owner Lessor (and the Owner Lessor shall reasonably consider and not unreasonably withhold its consent), to refund or refinance the Lease Debt, in whole but not in part, through the issuance of Additional Lessor Notes; provided that all conditions to the issuance of such Additional Lessor Notes contained in Section 2.12 of the Collateral Trust Indenture shall have been satisfied and all applicable Make-Whole Amounts shall have been paid. Any refinancing under this Section 11.2 shall also be subject to satisfaction of the following additional conditions: the Owner Lessor shall be able to issue and sell such debt in an amount adequate to accomplish such refunding or refinancing; with respect to the refinancing of the Initial Lessor Notes of a particular maturity, such Additional Lessor Notes shall have a final maturity no later than the final maturity date of such Initial Lessor Notes and will be fully repaid out of Basic Rent during the Facility Lease Term; appropriate adjustments to Basic Rent and Termination Value shall be made to preserve the Owner Participant's Net Economic Return; provided that no adjustments shall be made to the amortization schedule; no Significant Lease Default or Lease Event of Default shall have occurred and be continuing; the Owner Participant shall suffer no adverse accounting effects under GAAP; the Facility Lessee shall have made or delivered such representations, warranties, covenants, opinions and certificates as the Owner Participant may reasonably request, which representations, warranties, covenants and agreements shall be of no greater scope than those provided by the Facility Lessee on the Closing Date under the Operative Documents to which it is a party (except to the extent necessitated by differences between existing Operative Documents and the terms and conditions of the proposed refinancing); all documentation in connection with such refinancing shall be reasonably satisfactory to the Owner Lessor and the Owner Participant; the Owner Participant shall receive a consent fee of $100,000 in the aggregate for each refinancing after the first such refinancing; the Lease Debt as financed constitutes qualified nonrecourse indebtedness within the meaning of Treasury Regulations Section 1-861-10T(b) and the Owner Participant shall have received an opinion satisfactory to it to such effect; and the Owner Participant shall receive an opinion satisfactory to it that the refinancing (as opposed to the right to request such refinancing) shall not result in any incremental tax risk not indemnified to the Owner Participant's satisfaction. Calpine shall have affirmed in writing to the Transaction Parties that the Calpine Guaranty covers the additional indebtedness contemplated by this Section 11.2.;
Appears in 3 contracts
Samples: Participation Agreement (Calpine Corp), Participation Agreement (Calpine Corp), Participation Agreement (Calpine Corp)
Optional Refinancing of Lease Debt. The Facility Lessee shall have the right, exercisable at any time on no more than three occasions, to request the Owner Lessor (and the Owner Lessor shall reasonably consider and not unreasonably withhold its consent), to refund or refinance the Lease Debt, in whole but not in part, through the issuance of Additional Lessor Notes; provided that all 66 conditions to the issuance of such Additional Lessor Notes contained in Section 2.12 of the Collateral Trust Indenture shall have been satisfied and all applicable Make-Whole Amounts shall have been paid. Any refinancing under this Section 11.2 shall also be subject to satisfaction of the following additional conditions: the Owner Lessor shall be able to issue and sell such debt in an amount adequate to accomplish such refunding or refinancing; with respect to the refinancing of the Initial Lessor Notes of a particular maturity, such Additional Lessor Notes shall have a final maturity no later than the final maturity date of such Initial Lessor Notes and will be fully repaid out of Basic Rent during the Facility Lease Term; appropriate adjustments to Basic Rent and Termination Value shall be made to preserve the Owner Participant's Net Economic Return; provided that no adjustments shall be made to the amortization schedule; no Significant Lease Default or Lease Event of Default shall have occurred and be continuing; the Owner Participant shall suffer no adverse accounting effects under GAAP; the Facility Lessee shall have made or delivered such representations, warranties, covenants, opinions and certificates as the Owner Participant may reasonably request, which representations, warranties, covenants and agreements shall be of no greater scope than those provided by the Facility Lessee on the Closing Date under the Operative Documents to which it is a party (except to the extent necessitated by differences between existing Operative Documents and the terms and conditions of the proposed refinancing); all documentation in connection with such refinancing shall be reasonably satisfactory to the Owner Lessor and the Owner Participant; the Owner Participant shall receive a consent fee of $100,000 in the aggregate for each refinancing after the first such refinancing; the Lease Debt as financed constitutes qualified nonrecourse indebtedness within the meaning of Treasury Regulations Section 1-861-10T(b) and the Owner Participant shall have received an opinion satisfactory to it to such effect; and the Owner Participant shall receive an opinion satisfactory to it that the refinancing (as opposed to the right to request such refinancing) shall not result in any incremental tax risk not indemnified to the Owner Participant's satisfaction. Calpine shall have affirmed in writing to the Transaction Parties that the Calpine Guaranty covers the additional indebtedness contemplated by this Section 11.2.
Appears in 2 contracts
Samples: Participation Agreement (Calpine Corp), Participation Agreement (Calpine Corp)
Optional Refinancing of Lease Debt. The Facility Lessee shall will have the right, exercisable at any time on no more than three occasions, to request the Owner Lessor (and the Owner Lessor shall reasonably consider and not unreasonably withhold its consent), to refund or refinance the Lease Debt, in whole but not in part, through the issuance of Additional Lessor Notes; provided that all conditions to the issuance of such Additional Lessor Notes contained in Section 2.12 of the Collateral Trust Indenture shall have been satisfied and all applicable Make-Whole Amounts shall have been paid. Any refinancing under this Section 11.2 shall also be subject to satisfaction of the following additional conditions: the Owner Lessor shall be able to issue and sell such debt in an amount adequate to accomplish such refunding or refinancing; with respect to the refinancing of the Initial Lessor Notes of a particular maturity, such Additional Lessor Notes shall have a final maturity no later than the final maturity date of such Initial Lessor Notes and will be fully repaid out of Basic Rent during the Facility Lease Term; appropriate adjustments to Basic Rent and Termination Value shall be made to preserve the Owner Participant's Net Economic Return; provided that no adjustments shall be made to the amortization schedule; for as long as no Significant Lease Default or Lease Event of Default shall have occurred and be continuing, to request the Owner Lessor, and the Owner Lessor shall refund or refinance all or any of the Notes (including reasonable transaction costs with respect to such refinancing) and any related Certificates then outstanding), through the issuance of Additional Lessor Notes either in the public or private market to any Person that is not the Facility Lessee or any Affiliate of the Facility Lessee; provided that all conditions to the issuance of Notes contained in Section 2.12 of the Lease Indenture shall have been satisfied, as well as payment of any applicable Make Whole Premium. Any refinancing under this Section 12.2 shall also be subject to satisfaction of the following additional conditions:
(a) the Additional Issuer Notes can be issued and sold upon terms and conditions substantially the same terms as those then existing, or on such modified terms and conditions which shall be reasonably acceptable to the Owner Participant), and in an amount adequate to accomplish such refunding or refinancing;
(b) the Owner Participant shall suffer no adverse accounting effects under GAAP; be entitled to a consent fee of $100,000 for each such refinancing other than the first such refinancing, which fee shall be shared by the Other Owner Participants undertaking a concurrent refinancing in proportion with their respective Purchase Prices;
(c) appropriate adjustments to the Adjustment Items shall be made in accordance with Section 3.5 of the Facility Lease to protect the Owner Participant's Expected Return and to assure that the Facility Lessee shall have made or delivered receives the net benefit of such representations, warranties, covenants, opinions and certificates as refinancing;
(d) the Owner Participant may shall receive (x) a legal opinion satisfactory to it that the refinancing, including, without limitation, any payments to be made in connection therewith (as opposed to the right to request such refinancing), shall not result in any unindemnified incremental tax risk (determined based on the indemnification provisions contained in the Operative Documents) to the Owner Participant, or (y) an indemnification against such risk in form and substance reasonably requestsatisfactory to the Owner Participant from or guaranteed by an entity that meets the Minimum Credit Rating, which representationsor (z) any other indemnity arrangement against such risk satisfactory to the Owner Participant;
(e) at the time the Facility Lessee requests such refunding or refinancing, warranties, covenants and agreements shall be of no greater scope than those provided it obtains a letter from a nationally recognized investment banking firm selected by the Facility Lessee to the effect that prevailing interest rate and market conditions will permit such refunding or refinancing and that the refinancing is feasible and economically beneficial;
(f) the refinancing, taken as a whole, shall not result in any other material adverse effect on the Closing Date under Owner Lessor, the Operative Documents to which it is Owner Participant, the Equity Investor, the Equity Subsidiary Holding Company or the Equity Subsidiary, taken as a party whole;
(except to the extent necessitated by differences between existing Operative Documents and the terms and conditions of the proposed refinancing); g) all documentation in connection with such refinancing shall be reasonably satisfactory to the Owner Lessor and Lessor, the Owner Participant; , and the conditions set forth therein shall be met;
(h) all necessary authorizations, approvals and consents in connection with such refinancing shall have been obtained from each Person whose authorization, approval or consent is necessary to consummate such refinancing with respect to the Facility Lessee, the Owner Lessor, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustee, and such authorizations, approvals and consents shall be in full force and effect on the closing date of such refinancing;
(i) if (i) the principal amount of the Additional Lessor Notes exceeds that of the Notes existing on the refinancing date or (ii) the final maturity date of the Additional Lessor Notes is different from that of the existing Notes, the consummation of the transactions contemplated by the refinancing shall not cause the Owner Participant to account for the transactions contemplated by the Operative Documents as other than a "leveraged lease" under SFAS 13;
(j) all payments dates for principal and interest payments on the Additional Lessor Notes shall receive a consent fee become Rent Payment Dates;
(k) on the closing date of $100,000 in the aggregate for each refinancing after the first such refinancing; , each of the Facility Lessee, the Owner Lessor, the Lease Debt as financed constitutes qualified nonrecourse indebtedness within the meaning of Treasury Regulations Section 1-861-10T(b) Indenture Trustee and the Pass Through Trustee shall have executed and delivered all appropriate supplements to the Operative Documents that are necessary to consummate such refinancing, in form and substance reasonably satisfactory to the Owner Participant Lessor, the Lease Indenture Trustee and the Pass Through Trustee;
(l) each of the Owner Lessor, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustee shall have received an opinion of counsel for the Facility Lessee on such matters as they may reasonably request and in form and substance reasonably satisfactory to it such Persons;
(m) the Facility Lessee shall have delivered such certificates, reports and other documents and shall have taken all other actions which are required to such effect; and be delivered or taken by the pursuant to Section 2.12 of the Lease Indenture;
(n) each of the Owner Participant shall receive an opinion satisfactory to it that the refinancing (as opposed to the right to request such refinancing) shall not result in any incremental tax risk not indemnified to Lessor, the Owner Participant's satisfaction. Calpine , the Lease Indenture Trustee and the Pass Through Trustee shall have affirmed in writing received from the Facility Lessee an Officer's Certificate dated the date of the issuance of the Additional Lessor Notes stating that all conditions precedent to the Transaction Parties that issuance of such Additional Lessor Notes have been satisfied or waived;
(o) the Calpine Guaranty covers the additional indebtedness contemplated by consummation of such refinancing shall not violate any Applicable Law;
(p) any Notes redeemed in connection with a refinancing under this Section 11.212.2 shall be redeemed pro rata among the holders of such Notes and the holders of the Other Notes having the same maturity date as the Notes being redeemed, without preference to any such Note or Other Note; and
(q) so long as the Certificates remain outstanding, the Qualifying Credit Support shall be amended (or replaced with a replacement Qualifying Credit Support in accordance with Section 5.8(f)) to reflect the revised Periodic Lease Rent payments.
Appears in 1 contract
Samples: Participation Agreement (Reliant Energy Mid Atlantic Power Services Inc)
Optional Refinancing of Lease Debt. The Facility Lessee shall will have the right, exercisable at any time on no more than three occasions, to request the Owner Lessor (and the Owner Lessor shall reasonably consider and not unreasonably withhold its consent), to refund or refinance the Lease Debt, in whole but not in part, through the issuance of Additional Lessor Notes; provided that all conditions to the issuance of such Additional Lessor Notes contained in Section 2.12 of the Collateral Trust Indenture shall have been satisfied and all applicable Make-Whole Amounts shall have been paid. Any refinancing under this Section 11.2 shall also be subject to satisfaction of the following additional conditions: the Owner Lessor shall be able to issue and sell such debt in an amount adequate to accomplish such refunding or refinancing; with respect to the refinancing of the Initial Lessor Notes of a particular maturity, such Additional Lessor Notes shall have a final maturity no later than the final maturity date of such Initial Lessor Notes and will be fully repaid out of Basic Rent during the Facility Lease Term; appropriate adjustments to Basic Rent and Termination Value shall be made to preserve the Owner Participant's Net Economic Return; provided that no adjustments shall be made to the amortization schedule; for as long as no Significant Lease Default or Lease Event of Default shall have occurred and be continuing, to request the Owner Lessor, and the Owner Lessor shall in such event refund or refinance all or any series of the Lessor Notes and any related Certificates then outstanding, through the issuance of New Lessor Notes either in the public or private market to any Person that is not the Facility Lessee or any Affiliate of the Facility Lessee; provided that all conditions to the issuance of Lessor Notes contained in Section 2.13 of the Lease Indenture shall ------------ have been satisfied, as well as payment of any applicable Make Whole Premium. Any refinancing under this Section 12.2 shall also be subject to satisfaction of ------------ the following additional conditions:
(a) the New Lessor Notes can be issued and sold upon terms and conditions substantially the same terms as those then existing, or on such modified terms and conditions which shall be reasonably acceptable to the Owner Participant, and in an amount adequate to accomplish such refunding or refinancing;
(b) the Owner Participant may require SEMA to share with it up to 10% of any net economic benefit from the issuance of such New Lessor Notes;
(c) the Owner Participant shall suffer no have received (i) an opinion reasonably satisfactory to it from Owner Participant's Counsel to the effect that the refinancing should not result in any incremental risk of material adverse accounting effects under GAAP; federal income tax consequences to the Facility Lessee shall have made or delivered Owner Participant, and (ii) an indemnity against such representations, warranties, covenants, opinions risk in form and certificates as substance reasonably satisfactory to the Owner Participant may from or guaranteed by an entity that meets the Minimum Credit Rating (or, if the Minimum Credit Rating requirement is not met, the Owner Participant shall have received credit support in respect of such indemnity reasonably request, which representations, warranties, covenants and agreements satisfactory to the Owner Participant); provided that if the opinion referred to in clause (i) shall be that the refinancing "will" not result in any incremental risk of no greater scope than those provided by material adverse federal income tax consequences to XXXXXXXXX PARTICIPATION AGREEMENT (L1) -------------------------------------- the Facility Lessee Owner Participant, then the Minimum Credit Rating requirement shall not be required with respect to the indemnity set forth in clause (ii);
(d) the refinancing, taken as a whole, shall not result in any other material adverse effect on the Closing Date under Owner Lessor, the Operative Documents to which it is a party Owner Participant or the Equity Investor;
(except to the extent necessitated by differences between existing Operative Documents and the terms and conditions of the proposed refinancing); e) all documentation in connection with such refinancing shall be reasonably satisfactory to the Owner Lessor and Lessor, the Owner Participant; , and the conditions set forth therein shall be met;
(f) all necessary authorizations, approvals and consents in connection with such refinancing shall have been obtained from each Person whose authorization, approval or consent is necessary to consummate such refinancing with respect to the Facility Lessee, the Owner Lessor, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustee, and such authorizations, approvals and consents shall be in full force and effect on the closing date of such refinancing;
(g) if (i) the principal amount of the New Lessor Notes exceeds that of the Lessor Notes existing on the refinancing date or (ii) the final maturity date of the New Lessor Notes is different from that of the existing Lessor Notes, the consummation of the transactions contemplated by the refinancing shall not cause the Owner Participant to account for the transactions contemplated by the Operative Documents as other than a "leveraged lease" under SFAS 13;
(h) there shall receive a consent fee be no change to the amortization schedule or the payment dates for principal and interest payments from the amortization schedule and payment dates with respect to the Initial Lessor Notes;
(i) on the closing date of $100,000 in the aggregate for each refinancing after the first such refinancing; , each of the Facility Lessee, the Owner Lessor, the Lease Debt as financed constitutes qualified nonrecourse indebtedness within Indenture Trustee and each Pass Through Trustee shall have executed and delivered all appropriate supplements to the meaning of Treasury Regulations Section 1-861-10T(b) Operative Documents that are necessary to consummate such refinancing, in form and substance reasonably satisfactory to the Owner Lessor, the Lease Indenture Trustee and the Pass Through Trustee;
(j) each of the Owner Participant Lessor, the Owner Participant, the Equity Investor, the OP Guarantor, the Lease Indenture Trustee and each Pass Through Trustee shall have received an opinion of counsel for the Facility Lessee on such matters as they may reasonably request and in form and substance reasonably satisfactory to it such Persons;
(k) the Facility Lessee shall have delivered such certificates, reports and other documents and shall have taken all other actions which are required to such effectbe delivered or taken by the Facility Lessee pursuant to Section ------- 2.13 of the Lease Indenture; and ---- XXXXXXXXX PARTICIPATION AGREEMENT (L1) --------------------------------------
(l) each of the Owner Participant shall receive an opinion satisfactory to it that the refinancing (as opposed to the right to request such refinancing) shall not result in any incremental tax risk not indemnified to Lessor, the Owner Participant's satisfaction. Calpine , the Equity Investor, the OP Guarantor, the Lease Indenture Trustee and each Pass Through Trustee shall have affirmed in writing received from the Facility Lessee an Officer's Certificate dated the date of the issuance of the New Lessor Notes stating that all conditions precedent to the Transaction Parties that issuance of such New Lessor Notes have been satisfied or waived;
(m) SEMA shall have paid, on an After-Tax Basis, all Supplemental Lease Rent due and owing at the Calpine Guaranty covers time of the additional indebtedness contemplated by this Section 11.2refinancing; and
(n) the consummation of such refinancing shall not violate any Requirement of Law.
Appears in 1 contract
Optional Refinancing of Lease Debt. (a) The Facility Lessee shall Company will have the right, exercisable at any time on no more than three occasionsoccasions at any time, to request the Owner Lessor (Lessor, and the Owner Lessor shall reasonably consider consider, and shall not unreasonably withhold its consent)refuse, to refund or refinance the Lease Debtany Lessor Note, in whole whole, (but in any event not in part, less than all of the Lessor Notes constituting a single Tranche) through the issuance of Additional Lessor Notes; provided Notes directly to the public, to the relevant Pass Through Trust or to such other funding vehicle as may be used at that all time. Any refinancing under this Section 11.2 shall be subject to the conditions to the issuance of such Additional Lessor Notes contained in Section 2.12 of the Collateral Trust Indenture shall have been satisfied Lease Indenture, including payment of the Make Whole Premium, and all applicable Make-Whole Amounts shall have been paid. Any refinancing under this Section 11.2 shall also be subject to satisfaction of the following additional conditions: :
(i) the Owner Lessor shall be able to issue and sell such debt upon terms and conditions substantially the same as those then existing, or on such modified terms and conditions to be set forth in the Operative Documents (which modified terms and conditions shall be reasonably acceptable to the applicable Owner Participant), and in an amount adequate to accomplish such refunding or refinancing; with respect to ;
(ii) the refinancing of the Initial Lessor Notes of a particular maturity, such Additional Lessor Notes shall have a final maturity no later than the final maturity date of such Initial Lessor Notes Expiration Date and will be fully repaid out of Basic Periodic Lease Rent during the Facility Lease Term; appropriate adjustments provided, however, that absent a change in law that clarifies that any such refunding or refinancing will not give rise to Basic "contingent rent" under Section 467 of the Code and the regulations promulgated thereunder, the Additional Lessor Notes shall have the same principal amount, amortization schedule and final maturity date as the original Lessor Notes;
(iii) unless there shall have been a change in law with respect to Section 467 of the Code, Periodic Lease Rent and Termination Value shall be changed only to reflect the change in the interest rate and made to preserve protect the Owner Participant's Net Economic Return; provided that no adjustments shall be made to the amortization schedule; ;
(iv) no Significant Lease Default or Lease Event of Default shall have occurred and be continuing; ;
(v) the Owner Participant shall receive (x) an opinion from its counsel satisfactory to it that the refinancing, including any payments to be made in connection therewith (as opposed to the right to request such refinancing), shall not result in any incremental tax risk to the Owner Participant, or (y) an indemnification against any incremental risk in form and substance satisfactory to the Owner Participant from the Company provided that either the Company or any Affiliate of the Company that guarantees its obligations in respect of such indemnity meets the Minimum Credit Standard, or (z) any other indemnity arrangement against such risk satisfactory to the Owner Participant;
(vi) the Owner Participant shall suffer no adverse accounting effects under GAAP; ;
(vii) the Facility refinancing, when taken as a whole, shall not have resulted in any other material adverse effect on the Owner Lessor, the Owner Participant or the Equity Investor;
(viii) the Company and the Lessee Guarantor shall have made or delivered such representations, warranties, covenants, opinions and or certificates as the Owner Participant may reasonably request, which representations, warranties, covenants and agreements shall be of no greater scope than those provided by the Facility Lessee on the Closing Date under the Operative Documents to which it is a party ;
(except to the extent necessitated by differences between existing Operative Documents and the terms and conditions of the proposed refinancing); ix) all documentation in connection with such refinancing shall be reasonably satisfactory to the Owner Lessor and the Owner Participant;
(x) all necessary authorizations, approvals and consents in connection with such refinancing shall have been obtained from each Person whose authorization, approval or consent is necessary to consummate such refinancing with respect to the Company, the Owner Lessor, the Owner Participant, the Equity Investor, the Lease Indenture Trustee and the Pass Through Trustees, and such authorizations, approvals and consents shall be in full force and effect on the closing date of such refinancing; and
(xi) each of the Owner Lessor, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustees shall have received from the Company an Officer's Certificate dated the date of the issuance of the Additional Lessor Notes stating that all conditions precedent to the issuance of such Additional Lessor Notes have been satisfied or waived.
(b) The Owner Participant shall receive be entitled to a consent fee of in an amount equal to $100,000 in the aggregate 75,000 for each refinancing after other than the first such refinancing; provided, however, that to the Lease Debt as financed constitutes qualified nonrecourse indebtedness within extent such refinancing is effected concurrently with a refinancing pursuant to Section 11.2 of the meaning of Treasury Regulations Section 1-861-10T(b) and Other Participation Agreement, the fee payable to the Owner Participant shall have received an opinion satisfactory to it to such effect; and the Owner Participant shall receive an opinion satisfactory to it that the refinancing (as opposed to the right to request such refinancing) shall not result in any incremental tax risk not indemnified to the Owner Participant's satisfaction. Calpine shall have affirmed in writing to the Transaction Parties that the Calpine Guaranty covers the additional indebtedness contemplated by under this Section 11.211.2 shall be reduced to $37,500.
Appears in 1 contract
Optional Refinancing of Lease Debt. The Facility Lessee shall will have the right, exercisable at any time on no more than three occasions, for as long as no Significant Lease Default or 66 Lease Event of Default shall have occurred and be continuing, to request the Owner Lessor (Lessor, and the Owner Lessor shall reasonably consider and not unreasonably withhold its consent), to in such event refund or refinance all or any series of the Lease Debt, in whole but not in partLessor Notes and any related Certificates then outstanding, through the issuance of Additional New Lessor NotesNotes either in the public or private market to any Person that is not the Facility Lessee or any Affiliate of the Facility Lessee; provided that all conditions to the issuance of such Additional Lessor Notes contained in Section 2.12 2.13 of the Collateral Trust Lease Indenture shall have been satisfied and all satisfied, as well as ------------ payment of any applicable Make-Make Whole Amounts shall have been paidPremium. Any refinancing under this Section 11.2 ------- 12.2 shall also be subject to satisfaction of the following additional ---- conditions: :
(a) the New Lessor Notes can be issued and sold upon terms and conditions substantially the same terms as those then existing, or on such modified terms and conditions which shall be reasonably acceptable to the Owner Lessor shall be able to issue Participant, and sell such debt in an amount adequate to accomplish such refunding or refinancing;
(b) the Owner Participant may require SEMA to share with it up to 10% of any net economic benefit from the issuance of such New Lessor Notes;
(c) the Owner Participant shall have received (i) an opinion reasonably satisfactory to it from Owner Participant's Counsel to the effect that the refinancing should not result in any incremental risk of material adverse federal income tax consequences to the Owner Participant, and (ii) an indemnity against such risk in form and substance reasonably satisfactory to the Owner Participant from or guaranteed by an entity that meets the Minimum Credit Rating (or, if the Minimum Credit Rating requirement is not met, the Owner Participant shall have received credit support in respect of such indemnity reasonably satisfactory to the Owner Participant); provided that if the opinion referred to in clause (i) shall be that the refinancing "will" not result in any incremental risk of material adverse federal income tax consequences to the Owner Participant, then the Minimum Credit Rating requirement shall not be required with respect to the refinancing of indemnity set forth in clause (ii);
(d) the Initial Lessor Notes of refinancing, taken as a particular maturitywhole, such Additional Lessor Notes shall have a final maturity no later than the final maturity date of such Initial Lessor Notes and will be fully repaid out of Basic Rent during the Facility Lease Term; appropriate adjustments to Basic Rent and Termination Value shall be made to preserve not result in any other material adverse effect on the Owner Participant's Net Economic Return; provided that no adjustments shall be made to the amortization schedule; no Significant Lease Default or Lease Event of Default shall have occurred and be continuing; Lessor, the Owner Participant shall suffer no adverse accounting effects under GAAP; or the Facility Lessee shall have made or delivered such representations, warranties, covenants, opinions and certificates as the Owner Participant may reasonably request, which representations, warranties, covenants and agreements shall be of no greater scope than those provided by the Facility Lessee on the Closing Date under the Operative Documents to which it is a party Equity Investor;
(except to the extent necessitated by differences between existing Operative Documents and the terms and conditions of the proposed refinancing); e) all documentation in connection with such refinancing shall be reasonably satisfactory to the Owner Lessor and Lessor, the Owner Participant; , and the conditions set forth therein shall be met;
(f) all necessary authorizations, approvals and consents in connection with such refinancing shall have been obtained from each Person whose authorization, approval or consent is necessary to consummate such refinancing with respect to the Facility Lessee, the Owner Lessor, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustee, and such authorizations, approvals and consents shall be in full force and effect on the closing date of such refinancing;
(g) if (i) the principal amount of the New Lessor Notes exceeds that of the Lessor Notes existing on the refinancing date or (ii) the final maturity date of the New Lessor Notes is different from that of the existing Lessor Notes, the consummation of the transactions contemplated by the refinancing shall not cause the Owner Participant to account for the transactions contemplated by the Operative Documents as other than a "leveraged lease" under SFAS 13;
(h) there shall receive a consent fee be no change to the amortization schedule or the payment dates for principal and interest payments from the amortization schedule and payment dates with respect to the Initial Lessor Notes;
(i) on the closing date of $100,000 in the aggregate for each refinancing after the first such refinancing; , each of the Facility Lessee, the Owner Lessor, the Lease Debt as financed constitutes qualified nonrecourse indebtedness within Indenture Trustee and each Pass Through Trustee shall have executed and delivered all appropriate supplements to the meaning of Treasury Regulations Section 1-861-10T(b) Operative Documents that are necessary to consummate such refinancing, in form and substance reasonably satisfactory to the Owner Lessor, the Lease Indenture Trustee and the Pass Through Trustee;
(j) each of the Owner Participant Lessor, the Owner Participant, the Equity Investor, the OP Guarantor, the Lease Indenture Trustee and each Pass Through Trustee shall have received an opinion of counsel for the Facility Lessee on such matters as they may reasonably request and in form and substance reasonably satisfactory to it to such effect; and Persons;
(k) the Owner Participant shall receive an opinion satisfactory to it that the refinancing (as opposed to the right to request such refinancing) shall not result in any incremental tax risk not indemnified to the Owner Participant's satisfaction. Calpine Facility Lessee shall have affirmed in writing delivered such certificates, reports and other documents and shall have taken all other actions which are required to be delivered or taken by the Transaction Parties that Facility Lessee pursuant to Section 2.13 of the Calpine Guaranty covers the additional indebtedness contemplated by this Section 11.2.Lease Indenture; ------------
Appears in 1 contract
