Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced. (b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture. (c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction. (d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates being refinanced.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant Participants to participate in up to three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) refinancings, in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"), provided, that, such Refinancing may not occur prior to the fifth anniversary of the Delivery Date. Such Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to itthe Owner Participants), and shall be on terms that do not materially adversely affect the such Owner Participant. The Each Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the applicable Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the such Owner Participant and shall not include any financial statements of the such Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it Participants for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the each Owner Participant and the Indenture Trustee shall have received at least 15 days 10 Business Days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Refinancing, each Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the each Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the such Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the such Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant Participants and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Rent, Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant Participants shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant Participants by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participants as provided herein.
(d) Without Each party agrees to take or cause to be taken all requested action, including, without limitation, the prior written consent execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participants, direction to the Owner Trustee by the Owner Participants to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participants from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to the Owner Participants, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participants), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of each Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to each Owner Participant, which consent may be withheld in its sole discretionas Supplemental Rent under the Lease, no such refinancing shall sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(1vi) cause the aggregate principal amount The satisfaction or waiver by each other party to this Agreement of the indebtedness conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be substituted continuing or would occur immediately after giving effect to such Refinancing; and
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify any Owner Participant, or any of such Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the Loan Certificates to exceed meaning of Article 8 hereof, or Expenses, within the aggregate principal amount meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the then outstanding Loan CertificatesCode, (2) cause if the weighted average life of such indebtedness to be different by more than 6 months than sole underwriter or the remaining weighted average life manager or co-manager of the then outstanding Loan Certificates, underwriting syndicate or (3) cause the date of maturity of such indebtedness to be later than the date of maturity selling or placement agent of the Loan Certificates being refinancedRefinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify such Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) one refinancing, in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancings Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to itthe Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing Refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any such Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each such Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinancedrefinanced (assuming no principal on the old Certificates was due on the date of such Refinancing).
(b) Notwithstanding anything herein to the contrary, no the Refinancing will not be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days ten (10) Business Days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and Refinancing, the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared Participant and has not received the opinion referred to such rights in effect under the Operative Agreements prior proviso to such proposed RefinancingSection 15.01(d)(iii) hereof. Prior to the consummation of any the Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Rent, Stipulated Loss Values, Termination Values and Termination Values EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any the Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees (including reasonable allocated time charges of internal counsel) and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without Each party agrees to take or cause to be taken all requested action, including, without limitation, the prior written consent execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, which consent may direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be withheld in its sole discretion, no such refinancing shall (1) cause subject to the aggregate principal amount satisfaction of each of the indebtedness following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under Section 6.02 of the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel, certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to be substituted such party, including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant, provided, however, that if such indemnity is required, the Owner Participant shall also have received an opinion from independent tax counsel to the effect that a reasonable basis exists for the Loan Certificates to exceed tax filing position taken by the aggregate principal amount Owner Participant in respect of which such indemnity is given;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the then outstanding Loan CertificatesOwner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(2vi) cause the weighted average life of such indebtedness The satisfaction or waiver by each other party to be different by more than 6 months than the remaining weighted average life this Agreement of the then outstanding Loan Certificatesconditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity any of the Loan Certificates being refinancedOwner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Article 8 hereof, or Expenses, within the meaning of Article 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement; and
(ix) The Lessee shall pay all costs and expenses (including legal fees (including allocated time charges of internal counsel)) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may may, at any time after the third anniversary of the Delivery Date, request the Owner Participant to participate in up to three two (2) refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates prior to the end of during the Basic Term (a "Refinancing")) provided that on the date of such Refinancing no Payment Default, Bankruptcy Default or Event of Default shall have occurred and be continuing. Such Refinancings Refinancing may be placed in either the private or public markets in the United States or outside the United States and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied provided that there is no foreign currency risk to it)the Owner Participant, and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinancedrefinanced (assuming no principal on the old Certificates was due on the date of such Refinancing) and the final maturity of the new Certificates shall be no later than that of the old Certificates.
(bi) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days Business Days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and Refinancing, the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which (in the case of such loss, expense or tax) it has not been or will not have been indemnified in connection with such Refinancing by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. .
(ii) Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Rent, Stipulated Loss Values, Termination Values and Termination Values EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance reasonably satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates.
(e) Each party agrees to take or cause to be taken, at the Lessee's sole cost and expense, all action reasonably requested by the Lessee, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (3individually or collectively, an "ERISA Plan"), the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) cause if such placement is in the date form of maturity pass through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates and, if such purchasers represent that they are using funds of an ERISA Plan (which may be in the form of a deemed representation) in acquiring the Refinancing loan certificates, such purchasers further represent that (1) either they are relying on a prohibited transaction exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding the satisfaction of the relevant conditions of such indebtedness to be later than the date of maturity an exemption or (2) their purchase and holding of the Loan Certificates being refinancedRefinancing loan certificates will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans. The Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses resulting from any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to the placement of the Refinancing loan certificates with, or the holding of the Refinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person, within the meaning of Section 4975 of the Code, provided, however, that if the Lessee shall fail to obtain either of the representations set forth in clause (A) or (B) of this paragraph (viii), such indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xiii) and 9.01(b)(ix) hereof.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the an Owner Participant to participate in up to three refinancings (including the one refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancings Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner ParticipantParticipant and, nor shall its rights against all other parties taken if an additional indemnity is then provided by the Lessee as a whole be adversely affected compared the result of such Refinancing and the Owner Participant or the Indenture Trustee reasonably deems itself insecure with respect to such rights in effect under indemnity, the Operative Agreements prior Lessee shall have provided security or collateral for such indemnity which is reasonably satisfactory to such proposed RefinancingPerson nor would such transaction materially and adversely affect the rights and obligations of Owner Participant. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transactiontransaction and, if the Owner Participant reasonably deems itself insecure with respect to such indemnity, the Lessee shall have provided security or collateral for such indemnity which is reasonably satisfactory to the Owner Participant.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 three months than the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates being refinanced.
Appears in 1 contract
Sources: Participation Agreement (Atlantic Coast Airlines Inc)
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to itthe Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days 10 Business Days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and Refinancing, the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participant as provided herein.
(d) Without Each party agrees to take or cause to be taken all requested action, including, without limitation, the prior written consent execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and Breakage Costs, if any, and all other sums due and owing on the Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to the Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which consent in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any Breakage Costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates (or pass through certificates, if the placement is in the form of pass through certificates), by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the placement of the Refinancing loan certificates or pass through certificates, as the case may be, with an ERISA Plan only if purchasers of the Refinancing loan certificates or holders of pass through certificate holders, as the case may be, provide a representation (which may be withheld in its sole discretionthe form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates or pass through certificates, no as the case may be, and, if such refinancing shall purchasers or holders represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates or pass through certificates, as the case may be, such purchasers further represent that (1) cause either they are relying on a prohibited transaction exemption from the aggregate principal amount U.S. Department of Labor with respect to their purchase and holding of the indebtedness to be substituted for Refinancing loan certificates or pass through certificates, as the Loan Certificates to exceed case may be, and they provide representations regarding the aggregate principal amount satisfaction of the then outstanding Loan Certificates, relevant conditions of such an exemption or (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life their purchase and holding of the then outstanding Loan CertificatesRefinancing loan certificates or pass through certificates, as the case may be, will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans. If the exemption referred to in this paragraph (viii) is not valid or applicable in any respect to the purchase and holding of the Refinancing loan certificates or pass through certificates, as the case may be, or if the representation in this paragraph (3viii) cause that such purchase and holding will not constitute a non-exempt prohibited transaction is not correct, whichever is applicable, then the date Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Articles 8 and 9 hereof for Taxes and Expenses resulting from any "prohibited transaction", within the meaning of maturity Section 406 of such indebtedness to be later than the date of maturity ERISA or Section 4975(c)(1) of the Loan Certificates being refinancedCode, occurring with respect to the placement of the Refinancing loan certificates with, or the holding of the Refinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person, within the meaning of Section 4975 of the Code, provided, however, that if the Lessee shall fail to obtain the representations set forth in this paragraph (viii), such indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xii) and 9.01(b)(ix) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal fees) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. Borrower shall not consent to or permit a refinancing of the Mortgage Loan unless it obtains the prior consent of Lender, provided that Lender shall consent to a refinancing in full of the Mortgage Loan if, after considering the following factors, Lender determines in its reasonable discretion that such factors have been satisfied:
(a) Subject no Event of Default or event which with the giving of notice and/or lapse of time would constitute an Event of Default under this Agreement shall have occurred and be continuing;
(b) the new mortgage loan ("New MORTGAGE LOAN") shall have (i) an interest rate that is no higher than the then current interest rate for the Mortgage Loan, as determined by Lender in its sole discretion (and shall provide for an interest rate cap substantially identical to the terms and conditions Interest Rate Protection Agreement), (ii) a principal balance that is no more than the balance of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three refinancings (including the refinancing contemplated by this Agreement Mortgage Loan on the Refunding Date) in whole but not in part, date of the Certificates prior to refinancing, (iii) if the end New Mortgage Loan provides for amortization, an amortization schedule that provides for repayment in monthly installments each of which is no greater than the monthly payments due under the Mortgage Note, and (iv) a maturity date that is no earlier than that provided for under the Mortgage Loan at the time of the Basic Term closing thereof;
(a "Refinancing"). Such Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to c) the terms of any such Refinancing transaction (including the New Mortgage Loan shall permit the Loan, shall provide the same express rights to Lender as the Mortgage Loan and shall not conflict with the terms of any debt the Loan and the new mortgage lender shall enter into an intercreditor agreement with Lender no less favorable to Lender than the Intercreditor Agreement;
(d) no portion of the Property may not be issued transferred in connection with such refinancing except pursuant to a Sale or Pledge made in accordance with Article VII of this Agreement;
(e) Borrower shall pay all costs and the documentation to be executed expenses of Lender incurred in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offeringrefinancing, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out expenses of any such Refinancing transaction.Lender's counsel;
(df) Without Borrower shall execute and deliver such amendments to this Agreement and the prior written consent other Loan Documents as Lender may request in connection with such New Mortgage Loan; and
(g) Lender shall have received such settlement statements, pay-off letters, opinions and other documentation as it shall reasonably request in connection with such refinancing. Upon the satisfaction of the Owner Participantforegoing, which Borrower may permit or consent may be withheld in its sole discretion, no such to a refinancing shall (1) cause the aggregate principal amount of the indebtedness Mortgage Loan, whereupon such New Mortgage Loan shall be deemed to be substituted for the Mortgage Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates being refinancedas defined herein.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may request the Owner Participant to participate in up to three two refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancings Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), Dollars and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates Equipment Notes issued in connection with each any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory in form and substance to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies provides an indemnity on an After Tax Basis to the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of themthem (provided that Taxes are excluded from such indemnity), for any liability, obligation (other than than, in the case of the Owner Trustee, the non-recourse obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates Equipment Notes to exceed the aggregate principal amount of the then outstanding Loan CertificatesEquipment Notes, (2) cause the weighted average life of such indebtedness to be different by more than 6 months longer than the remaining weighted average life of the then outstanding Loan CertificatesEquipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates Equipment Notes being refinanced.
(e) Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Equipment Notes then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment shall have been made with respect to principal, accrued interest, Make-Whole Premium, if any, and all other sums due and owing on the Equipment Notes payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel selected by Owner Participant and reasonably satisfactory to the Lessee that such Refinancing shall not result in any, or the risk of any, adverse tax consequences to such Owner Participant, unless the Lessee shall have provided, or caused to be provided, an indemnity in respect thereof satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) No Specified Default shall exist or would occur immediately after giving effect to such Refinancing;
(vi) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an ERISA Plan, the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass-through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to Pass-Through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass-through certificates, purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that they are relying on a prohibited transaction exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be). The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans;
(vii) The Lessee shall pay all costs and expenses (including legal fees and disbursements) incurred in connection with any proposed or actually consummated Refinancing; and
(viii) In the case of Refinancings after the first Refinancing, the Lessee shall pay the Owner Participant, upon the consummation of any such Refinancing, a refinancing fee in the aggregate amount of $75,000 (it being understood that there is no such refinancing fee payable on the first Refinancing); provided that, in the event such Refinancing also involves the indebtedness issued under any Related Indenture, the payment of this fee under this Section 13.01(e)
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may request the Owner Participant to participate in up to three two refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancings Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), Dollars and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates Equipment Notes issued in connection with each any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory in form and substance to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, the Basic Rent and setting forth Stipulated Loss Values and allocations, the Termination Values payable pursuant to the Lease and the EBO Amount as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies provides an indemnity on an After Tax Basis to the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of themthem (provided that Taxes are excluded from such indemnity), for any liability, obligation (other than than, in the case of the Owner Trustee, the non- recourse obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates Equipment Notes to exceed the aggregate principal amount of the then outstanding Loan CertificatesEquipment Notes, (2) cause the weighted average life of such indebtedness to be different by more than 6 months longer than the remaining weighted average life of the then outstanding Loan CertificatesEquipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates Equipment Notes being refinanced.
(e) Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Equipment Notes then outstanding; provided, however, -------- ------- that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment shall have been made with respect to principal, accrued interest, Make-Whole Premium, if any, and all other sums due and owing on the Equipment Notes payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel selected by Owner Participant and reasonably satisfactory to the Lessee that such Refinancing shall not result in any, or the risk of any, adverse tax consequences to such Owner Participant, unless the Lessee shall have provided, or caused to be provided, an indemnity in respect thereof satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) No Specified Default shall exist or would occur immediately after giving effect to such Refinancing;
(vi) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an ERISA Plan, the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass-through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass-through certificates (such as Prohibited Transaction Exemption 89- 88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass- through certificates, purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass- through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that they are relying on a prohibited transaction exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be). The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans; and
(vii) The Lessee shall pay all costs and expenses (including legal fees and disbursements) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to Except as otherwise provided in the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three refinancings OPA (including any attachments thereto) and herein, Owner shall not refinance the refinancing contemplated by this Agreement Senior Loan and/or Permanent Loan for the Affordable Units or place any additional financing on the Refunding Date) in whole but not in part, Property without the advance written consent of the Certificates prior Mayor. Notwithstanding the foregoing sentence, Owner shall have the right, from time-to-time, to refinance the end of the Basic Term Permanent Loan (a "Refinancing"). Such Refinancings may be placed in either , subject to the private or public markets and following conditions: (i) the debt obtained pursuant to a Refinancing shall not exceed eighty percent (80%) of the value of the Property as determined by an appraisal conducted at Owner’s expense by an MAI appraiser selected by Owner’s lender (which appraiser shall be denominated subject to the approval of Mayor); (ii) the mortgage securing the Refinancing (“Refinance Mortgage”) shall cover all of Owner’s interest in United States dollars (the Property, the Improvements and, without the prior express consent of Mayor, which Mayor shall not unreasonably withhold, condition or delay, shall cover no interest in any other foreign currency so long real property; (iii) no such Refinance Mortgage shall be binding upon City in the enforcement of its rights and remedies upon the Property, unless and until Owner delivers or causes to be delivered to City a certified copy of the fully executed original Refinance Mortgage bearing the date and recording information and a certified copy of the original note secured by the Refinance Mortgage, together with written notice of the address of the mortgagee for the Refinance Mortgage to which notices may be sent; and (iv) no Refinance Mortgage permitted by this section shall cover more than one indebtedness (that is, there shall be no cross-collateralization permitted). If, at any time, Owner completes a Refinancing, Owner shall apply the Net Refinancing Proceeds (as defined in the Owner Participant is satisfied there is no foreign currency risk City Note) as follows: (i) first, to it)pay any and all accrued interest on the City Loan; and (ii) second, forty percent (40%) of such remaining net proceeds shall be paid towards reducing the principal balance of the City Loan to the applicable principal balance amount indicated on City Loan Amortization Schedule attached to the OPA as Attachment No. 22, and sixty percent (60%) of such remaining net proceeds shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as paid to the terms Owner. To the extent that Refinancing proceeds are used by Borrower to purchase the interests of the Tax Credit Investor, the City's 40% share of Net Refinancing Proceeds shall be calculated after deduction of the amount used to pay the purchase price for such interests. Owner shall make any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein payment to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 City within thirty (30) days prior following written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenturerequest therefor.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates being refinanced.
Appears in 1 contract
Sources: Owner Participation Agreement
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three two refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) ), in whole but not in part, of the Certificates prior to the end of the Basic Term (each a "Refinancing"). Such Refinancings may be placed in either the private or public markets in the United States and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it)dollars, and shall be on terms that do reasonably satisfactory to the Owner Participant and shall not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The With the exception of the refinancing contemplated by this Agreement on the Refunding Date, the aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and Refinancing, the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the CodeCode and the Treasury Regulations promulgated thereunder) for which (in the case of such loss, expense or tax) it has not been or will not have been indemnified in connection with such Refinancing by the Lessee in a manner reasonably satisfactory in all respects to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Rent, Stipulated Loss Values Values, and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participant as provided herein.
(d) Without Each party agrees to take or cause to be taken, at the prior written consent Lessee's sole cost and expense, all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, which consent may direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be withheld in its sole discretion, no such refinancing shall (1) cause subject to the aggregate principal amount satisfaction of each of the indebtedness following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and Breakage Costs, if any, and all other sums due and owing on the Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel and reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any Breakage Costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing; and
(viii) The documentation relating to such Refinancing shall permit the Lessee to place the Refinancing loan certificates with an ERISA Plan. The Lessee shall not indemnify the Owner Participant, or any of the Owner Participant's Affiliates, assigns, officers, directors, employees, agents and servants, for any Taxes, within the meaning of Section 8 hereof, or Expenses, within the meaning of Section 9 hereof, arising under or in connection with any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code, if the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates has an exemption from the prohibited transaction rules under Section 406 of ERISA and Section 4975 of the Code with respect to pass through certificates, such as Prohibited Transaction Exemption 90-24 or any other comparable exemption, unless such exemption is not available or is not valid with respect to such Refinancing loan certificates at the time of such prohibited transaction. If such exemption is not available or is not valid, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Section 8 and 9 hereof for Taxes and Expenses arising under or in connection with any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975 of the Code, resulting from such placement.
(e) Any debt to be substituted issued in connection with a Refinancing shall have an interest rate that is fixed for the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life entire term of such indebtedness to be different by more than 6 months than debt and shall not include any debt whose fixed interest rate is reset at any time during the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity term of such indebtedness to be later than the date of maturity of the Loan Certificates being refinanceddebt.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may request the Owner Participant to participate in up to three two refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancings Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), Dollars and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates Equipment Notes issued in connection with each any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory in form and substance to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent, the Basic Rent and setting forth Stipulated Loss Values and allocations, the Termination Values payable pursuant to the Lease and the EBO Amount as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies provides an indemnity on an After Tax Basis to the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of themthem (provided that Taxes are excluded from such -------- indemnity), for any liability, obligation (other than than, in the case of the Owner Trustee, the non-recourse obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium Breakage Cost or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates Equipment Notes to exceed the aggregate principal amount of the then outstanding Loan CertificatesEquipment Notes, (2) cause the weighted average life of such indebtedness to be different by more than 6 months longer than the remaining weighted average life of the then outstanding Loan CertificatesEquipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates Equipment Notes being refinanced.
(e) Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Equipment Notes then outstanding; provided, however, that such Refinancing shall be -------- ------- subject to the satisfaction of each of the following conditions:
(i) Payment shall have been made with respect to principal, accrued interest, Breakage Cost, if any, and all other sums due and owing on the Equipment Notes payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel selected by Owner Participant and reasonably satisfactory to the Lessee that such Refinancing shall not result in any, or the risk of any, adverse tax consequences to such Owner Participant, unless the Lessee shall have provided, or caused to be provided, an indemnity in respect thereof satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) No Specified Default shall exist or would occur immediately after giving effect to such Refinancing;
(vi) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an ERISA Plan, the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass-through certificates, the sole underwriter or the manager or co- manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass-through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass-through certificates, purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that they are relying on a prohibited transaction exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be). The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans; and
(vii) The Lessee shall pay all costs and expenses (including legal fees and disbursements) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to The Issuer may, at the terms and conditions direction of this Section 15.01the Holders of at least 662/3% of the Outstanding Principal Balance of the Class F Notes, effect a refinancing of the Lessee may request the Owner Participant to participate in up to three refinancings Offered Notes (including the refinancing contemplated by this Agreement on the Refunding Date) a “Refinancing”), in whole but not in part, on any Payment Date on or after the Payment Date occurring on September 21, 2009 (such date, a “Refinancing Date”) by payment of the Certificates Refinancing Price to the Holders of the Offered Notes and other Persons entitled thereto (such Refinancing Date to be specified in a notice to be delivered to the Issuer at least 10 Business Days prior to the end of the Basic Term (a "Refinancing"such Refinancing Date). Such Refinancings may be placed To effect a Refinancing, the Issuer shall deposit in either the private or public markets Note Distribution Account by no later than 1:00 p.m. (New York City time) on the applicable Refinancing Date an amount equal to the Refinancing Price and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement comply with the Lessee as to the terms provisions of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing this Section 10.03 and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinancedSection 10.04.
(b) Notwithstanding anything herein to Any Refinancing shall be permitted only in connection with an issuance of additional notes (such notes, the contrary“Replacement Notes”), no Refinancing the proceeds of which will be permitted unless used to fully prepay all Classes of Offered Notes. Upon receipt of a notice of Refinancing, the Owner Participant Servicer will cause the Issuer to issue and the Indenture Trustee shall have received shall, upon receipt of an Issuer Order, authenticate and deliver Replacement Notes having the terms, priorities and conditions set forth in a supplemental indenture to the Indenture approved by the Holders of at least 15 days prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) 662/3% of the scheduled closing date Outstanding Principal Balance of such the Class F Notes and approved by the Servicer. No Refinancing shall be permitted hereunder unless, after giving effect thereto, the Offered Notes shall be prepaid in full. The issue of the Replacement Notes, and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 prepayment of the Code) for which it has not been or Offered Notes, will not have been indemnified be contingent on receipt by the Lessee Issuer of sufficient funds from the issuance of the Replacement Notes to prepay in a manner reasonably satisfactory to full the Owner Participant, nor shall its rights against all Offered Notes and pay certain other parties taken as a whole be adversely affected compared to such rights amounts by payment in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result full of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the IndenturePrice.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect The portion of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees Refinancing Price constituting payment of principal of the Offered Notes shall be distributed to Noteholders in accordance with Section 7.05(b) of the Sale and Make-Whole Premium or Servicing Agreement and all other amounts due under included in the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(dPrice shall be distributed in accordance with Section 7.05(b) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates being refinancedSale and Servicing Agreement.
Appears in 1 contract
Sources: Indenture (Capitalsource Inc)
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three two refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancings may be placed in either the private or public markets on terms satisfactory to the Lessee and shall the Owner Participant and may be denominated placed outside the United States, in United States dollars (or in any other foreign currency so long as currency. The Lessee may require the Owner Participant is satisfied there is no foreign currency risk Trustee to it), and shall be on terms that do not materially adversely affect convey nominal title to the Owner ParticipantAircraft for security purposes only in a transaction structured as a conventional equipment trust certificate financing. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering including, without limitation, an offering under Rule 144A promulgated under the Securities Act of 1933, as amended, (i) the Owner Participant shall have a right of review (which shall be undertaken promptly to accommodate the proposed Refinancing schedule) and approval (which shall not be unreasonably withheld) with respect to the description of the transaction in any offering materials to be used in connection with such offering, and (ii) the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinancedrefinanced (assuming no principal on the old Certificates was due on the date of such Refinancing), the final maturity of the new Certificates shall be no later than that of the old Certificates, and the Owner Participant's equity investment in the transaction shall not be increased.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days Business Days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and Refinancing, the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review and comment on the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or material adverse effect upon the rights or obligations or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including including, without limitation, the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Rent, Stipulated Loss Values, Termination Values and Termination Values EBO Amount payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense out-of-pocket costs and expenses (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or any other premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without Each party agrees to take or cause to be taken all requested action, including, without limitation, the prior written consent execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the foregoing conditions in this Section 15.01 and each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which consent in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Event of Default shall have occurred and be continuing or no Default or Event of Default will result from such Refinancing; and
(viii) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates provide a representation (which may be withheld in its sole discretionthe form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates and, no if such refinancing shall purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates, such purchasers further represent that (1) cause either they are relying on a prohibited transaction exemption from the aggregate principal amount U.S. Department of Labor with respect to their purchase and holding of the indebtedness to be substituted for Refinancing loan certificates and they provide representations regarding the Loan Certificates to exceed the aggregate principal amount satisfaction of the then outstanding Loan Certificates, relevant conditions of such an exemption or (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life their purchase and holding of the then outstanding Loan CertificatesRefinancing loan certificates will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans. If neither exemption referred to in clause (A) or (B) of this paragraph (viii) is valid or applicable in any respect to the purchase and holding of the Refinancing loan certificates, or if the representation in clause (3B) cause of this paragraph (viii) that such purchase and holding will not constitute a non-exempt prohibited transaction is not correct, whichever is applicable, then the date Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses resulting from any "prohibited transaction", within the meaning of maturity Section 406 of such indebtedness to be later than the date of maturity ERISA or Section 4975(c)(1) of the Loan Certificates being refinancedCode, occurring with respect to the placement of the Refinancing loan certificates with, or the holding of the Refinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person, within the meaning of Section 4975 of the Code, provided, however, that if the Lessee shall fail to obtain either of the representations set forth in clause (A) or (B) of this paragraph (viii), such indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xii) and 9.01(b)(ix) hereof.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may request the Owner Participant to participate in up to three two refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancings Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), Dollars and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates Equipment Notes issued in connection with each any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance reasonably satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates Equipment Notes to exceed the aggregate principal amount of the then outstanding Loan CertificatesEquipment Notes, (2) cause the weighted average life of such indebtedness to be different by more than 6 six months than the remaining weighted average life of the then outstanding Loan CertificatesEquipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates Equipment Notes being refinanced.
(e) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Equipment Notes then outstanding; provided, however, that such Refinancing shall be -------- ------- subject to the satisfaction of each of the following conditions:
(i) Payment shall have been made with respect to principal, accrued interest, Make-Whole Premium, if any, and all other sums due and owing on the Equipment Notes payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) No Specified Default shall exist or would occur immediately after giving effect to such Refinancing;
(vi) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an ERISA Plan, the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass-through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass-through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass-through certificates, purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that (1) either they are relying on a prohibited transaction exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be) or (2) their purchase and holding of the Refinancing loan certificates (or such pass- through certificates, as the case may be) will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans; and
(vii) The Lessee shall pay all costs and expenses (including legal fees) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) ), in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"), provided, that, except in connection with the Refinancing contemplated by this Agreement on the Refunding Date, such Refinancing may not occur prior to the fifth anniversary of the Refunding Date. Such Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to itthe Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days 10 Business Days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and Refinancing, the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or material adverse effect upon the rights or obligations or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Interim Rent, Basic Rent and setting forth Rent, Stipulated Loss Values, Termination Values and Termination Values EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participant as provided in Article 10 hereof.
(d) Without Each party agrees to take or cause to be taken all requested action, including, without limitation, the prior written consent execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) payment of principal, accrued interest, Make-Whole Premium and Breakage Costs, if any, and all other sums due and owing on the Certificates payable under the Indenture;
(ii) payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) all authorizations, approvals and consents which consent may in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) the Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any Breakage Costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) the satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) no Event of Default shall have occurred and be withheld continuing or would occur immediately after giving effect to such Refinancing;
(viii) the Indenture Trustee shall have received no later than the Business Day next preceding the day 15 days prior to the effective date of such Refinancing irrevocable notice of such Refinancing; and
(ix) in the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a plan, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through certificates (such as Prohibited Transaction Exemption 90-24 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates provide a representation regarding their source of funds used in acquiring the Refinancing loan certificates and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates, such purchasers further represent that either a prohibited transaction exemption from the U.S. Department of Labor is available with respect to their purchase and holding of the Refinancing loan certificates or that their purchase and holding of the Refinancing loan certificates will not constitute a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its sole discretionparty in interest or other status with respect to ERISA Plans. If neither exemption referred to in clause (A) or (B) of this paragraph (viii) is valid or applicable in any respect to the purchase and holding of the Refinancing loan certificates, no or if the representation in clause (B) of this paragraph (viii) that such refinancing purchase and holding will not constitute a prohibited transaction is not correct, whichever is applicable then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses resulting from any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c) (1) cause the aggregate principal amount of the indebtedness Code, occurring with respect to be substituted for the Loan Certificates to exceed the aggregate principal amount placement of the then outstanding Loan CertificatesRefinancing loan certificates with, (2) cause or the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life holding of the then outstanding Loan CertificatesRefinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or (3) cause a disqualified person, within the date meaning of maturity of such indebtedness to be later than the date of maturity Section 4975 of the Loan Certificates being refinancedCode.
Appears in 1 contract
Refinancing. Borrower and its Subsidiaries shall have effected (a) Subject to the terms and conditions of this Section 15.01or will, the Lessee may request the Owner Participant to participate in up to three refinancings (including the refinancing contemplated by this Agreement on the Refunding Restatement Date, effect) the repayment in whole but not in partfull of all Loans outstanding under the First Amended and Restated Credit Agreement, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect the termination of all outstanding commitments in effect under the First Amended and Restated Credit Agreement on terms and conditions and pursuant to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner documentation reasonably satisfactory to the Owner ParticipantAdministrative Agent, nor and Arrangers shall its rights against all other parties taken as have received (or will, on the Restatement Date, receive) evidence thereof reasonably satisfactory to Arrangers and a whole be adversely affected compared “pay-off” letter or letters reasonably satisfactory to Arrangers with respect to such rights in effect under Loans, as Arrangers shall have reasonably requested. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Operative Agreements prior to such proposed RefinancingRestatement Date. Prior Notwithstanding anything to the consummation contrary contained in this Agreement or the other Credit Documents, the parties hereto acknowledge and agree that (i) the delivery of any Refinancing pursuant to this Section 15.01document or instrument, the Owner Participant and the Lessee taking of any action, set forth on Schedule 5.15 hereto shall agree upon not be a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant condition precedent to the Lease as a result of Restatement Date but shall be required to be satisfied after the Refinancing Restatement Date in accordance with Section 3.04 Schedule 5.15 hereto, and (ii) all conditions precedent and representations, warranties, covenants, Events of Default and other provisions contained in this Agreement and the other Credit Documents shall be deemed modified as set forth on Schedule 5.15 hereto (and to permit the taking of the Leaseactions described therein within the time periods required therein, rather than as elsewhere provided in the Credit Documents); provided that (x) to the extent any representation and thereafter warranty would not be true because the amounts actions set forth therein were not taken on the Restatement Date, the respective representation and warranty shall be required to be true and correct in all material respects at the time the respective action is taken (or was required to be taken) in accordance with the provisions of Schedule 5.15 and (y) all representations and warranties relating to the Collateral Documents set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing Schedule 5.15 shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness required to be substituted for true immediately after the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness actions required to be different taken by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates, Schedule 5.15 have been taken (or (3) cause the date of maturity of such indebtedness were required to be later than the date of maturity of the Loan Certificates being refinancedtaken).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Valeant Pharmaceuticals International, Inc.)
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, on any date on or after the fifth anniversary of the Delivery Date (except in the case of a refinancing which occurs after a Noteholder has requested the payment of (x) any Increased Costs pursuant to Section 2.14(a) of the Indenture or (y) any amounts pursuant to Article 6 hereof in respect of withholding Taxes, in which case such refinancing may be requested by the Lessee at any time), the Lessee may request the Owner Participant to participate in up to three two refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancings Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), Dollars and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates Equipment Notes issued in connection with each any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory in form and substance to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies provides an indemnity on an After Tax Basis to the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of themthem (provided that Taxes are excluded from such -------- indemnity), for any liability, obligation (other than than, in the case of the Owner Trustee, the non-recourse obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium Amount or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates Equipment Notes to exceed the aggregate principal amount of the then outstanding Loan CertificatesEquipment Notes, (2) cause the weighted average life of such indebtedness to be different by more than 6 months longer than the remaining weighted average life of the then outstanding Loan CertificatesEquipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates Equipment Notes being refinanced.
(e) Subject to the foregoing provisions of this Section 13.01, each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Equipment Notes then outstanding; provided, however, -------- ------- that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment shall have been made with respect to principal, accrued interest, Make-Whole Amount, if any, and all other sums due and owing on the Equipment Notes payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel selected by Owner Participant and reasonably satisfactory to the Lessee that such Refinancing shall not result in any, or the risk of any, adverse tax consequences to such Owner Participant, unless the Lessee shall have provided, or caused to be provided, an indemnity in respect thereof satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) No Specified Default shall exist or would occur immediately after giving effect to such Refinancing;
(vi) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an ERISA Plan, the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass-through certificates, the sole underwriter or the manager or co- manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass-through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass-through certificates, purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that they are relying on a prohibited transaction exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be). The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans; and
(vii) The Lessee shall pay all costs and expenses (including legal fees and disbursements) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) ), in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"), provided, that, except in connection with the Refinancing contemplated by this Agreement on the Refunding Date, such Refinancing may not occur prior to the fifth anniversary of the Refunding Date. Such Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to itthe Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days 10 Business Days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and Refinancing, the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Interim Rent, Basic Rent and setting forth Rent, Stipulated Loss Values, Termination Values and Termination Values EBO Price payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participant as provided in Article 10 hereof.
(d) Without Each party agrees to take or cause to be taken all requested action, including, without limitation, the prior written consent execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, which consent may direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be withheld in its sole discretion, no such refinancing shall (1) cause subject to the aggregate principal amount satisfaction of each of the indebtedness to be substituted for the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates being refinanced.following conditions:
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three two refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"). Such Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates being refinanced.
(e) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment of principal, accrued interest, Make-Whole Premium and breakage costs, if any, and all other sums due and owing on the Certificates payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Certificates then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) The Lessee shall have provided or agreed to provide to the Owner Participant, as Supplemental Rent under the Lease, sufficient funds to pay any breakage costs, Make-Whole Premium and any other amounts due under the Indenture;
(vi) The satisfaction or waiver by each other party to this Agreement of the conditions set forth in this Section 15.01 to such party's obligations under this Section 15.01;
(vii) No Payment Default, Bankruptcy Default or Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such Refinancing;
(viii) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of the Refinancing loan certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to pass through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates, such purchasers further represent that (1) either they are relying on a prohibited transaction exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates and they provide representations regarding the satisfaction of the relevant conditions of such an exemption or (2) their purchase and holding of the Refinancing loan certificates will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans. If neither exemption referred to in clause (A) or (B) of this paragraph (viii) is valid or applicable in any respect to the purchase and holding of the Refinancing loan certificates, or if the representation in clause (B) of this paragraph (viii) that such purchase and holding will not constitute a non-exempt prohibited transaction is not correct, whichever is applicable, then the Lessee shall indemnify the Owner Participant pursuant to, and to the extent provided for, under Sections 8 and 9 hereof for Taxes and Expenses resulting from any "prohibited transaction", within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code, occurring with respect to the placement of the Refinancing loan certificates with, or the holding of the Refinancing loan certificates by, any ERISA Plan with respect to which the Owner Participant is a party in interest, within the meaning of Section 3(14) of ERISA, or a disqualified person, within the meaning of Section 4975 of the Code, provided, however, that if the Lessee shall fail to obtain either of the representations set forth in clause (A) or (B) of this paragraph (viii), such indemnity shall not be subject to the exceptions set forth under Sections 8.01(b)(xii)(A) and (B) and 9.01(b)(ix)(A) and (B) hereof; and
(ix) The Lessee shall pay all costs and expenses (including legal fees) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.0113.01, the Lessee may request the Owner Participant to participate in up to three two refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates Equipment Notes prior to the end of the Basic Term (a "Refinancing"). Such Refinancings Refinancing may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), and shall be on terms that do not materially adversely affect reasonably satisfactory to the Owner Participant. The Owner Participant agrees will agree to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each any Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates Equipment Notes being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.0113.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 3(d) of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "CertificatesEquipment Notes" for purposes of this Agreement, the Lease Agreement and the IndentureLease.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 13.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance reasonably satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount of the indebtedness to be substituted for the Loan Certificates Equipment Notes to exceed the aggregate principal amount of the then outstanding Loan CertificatesEquipment Notes, (2) cause the weighted average life of such indebtedness to be different by more than 6 six months than the remaining weighted average life of the then outstanding Loan CertificatesEquipment Notes, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates Equipment Notes being refinanced.
(e) Each party agrees to take or cause to be taken all requested action, including, without limitation, the execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, direction to the Owner Trustee by the Owner Participant to prepay the Equipment Notes then outstanding; provided, however, that such Refinancing shall be subject to the satisfaction of each of the following conditions:
(i) Payment shall have been made with respect to principal, accrued interest, Make-Whole Premium, if any, and all other sums due and owing on the Equipment Notes payable under the Indenture;
(ii) Payment in full of all other amounts then due and owing by the Lessee under this Agreement, the Indenture, the Lease, the Trust Agreement, and the Equipment Notes then outstanding shall have been made by the Lessee;
(iii) Such party shall have received such opinions of counsel (including, without limitation, an opinion received by the Owner Participant from independent tax counsel reasonably satisfactory to the Lessee that such Refinancing shall not result in any adverse tax consequences to such Owner Participant, unless the Lessee shall have agreed to provide an indemnity in respect thereof reasonably satisfactory in form and substance to the Owner Participant), certificates and other documents as it may reasonably request, each in form and substance reasonably satisfactory to such party;
(iv) All authorizations, approvals and consents which in the reasonable judgment of the Owner Participant are necessary for such Refinancing shall have been obtained;
(v) No Specified Default shall exist or would occur immediately after giving effect to such Refinancing;
(vi) In the event the Lessee shall not prohibit the purchase of the Refinancing loan certificates by, or with the assets of, an employee benefit plan, as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA or a plan or individual retirement account, which is subject to Section 4975(c) of the Code, (individually or collectively, an "ERISA Plan"), the Lessee will permit the placement of the Refinancing loan certificates with an ERISA Plan only if either (A) if such placement is in the form of pass-through certificates, the sole underwriter or the manager or co-manager of the underwriting syndicate or the selling or placement agent of such pass-through certificates represents to the Lessee that it has a prohibited transaction exemption from the U.S. Department of Labor with respect to Pass-Through certificates (such as Prohibited Transaction Exemption 89-88 or any other comparable exemption) or (B) purchasers of the Refinancing loan certificates (or if the Refinancing involves the issuance and sale of pass-through certificates, purchasers of such pass-through certificates) provide a representation (which may be in the form of a deemed representation) regarding their source of funds used in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be) and, if such purchasers represent that they are using funds of an ERISA Plan in acquiring the Refinancing loan certificates (or such pass-through certificates, as the case may be), such purchasers further represent that (1) either they are relying on a prohibited transaction exemption from the U.S. Department of Labor with respect to their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be) or (2) their purchase and holding of the Refinancing loan certificates (or such pass-through certificates, as the case may be) will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. The reliance on any such exemption will not be conditional on the Owner Participant's representation concerning its party in interest or other status with respect to ERISA Plans; and
(vii) The Lessee shall pay all costs and expenses (including legal fees) incurred in connection with any proposed or actually consummated Refinancing.
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) refinancings, in whole but not in part, of the Certificates prior to the end of the Basic Term (a "Refinancing"), provided, that, such Refinancing may not occur prior to the fifth anniversary of the Refunding Date. Such Refinancings may be placed in either the private or public markets and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to itthe Owner Participant), and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as to the terms of any such Refinancing transaction (including the terms of any debt to be issued in connection with such refinancing and the documentation to be executed in connection therewith). Without the prior written consent of the applicable Owner Participant, the prospectus and other offering materials relating to any Refinancing in the form of a public offering shall not identify the Owner Participant and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinanced.
(b) Notwithstanding anything herein to the contrary, no Refinancing will be permitted unless the Owner Participant and the Indenture Trustee shall have received at least 15 days 10 Business Days' prior written notice (three (3) Business Days with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and Refinancing, the Owner Participant shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Rent, Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indenture.
(c) Notwithstanding the foregoing, the Owner Participant shall have no obligation to proceed with any Refinancing transaction as contemplated by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement in form and substance satisfactory to each of them, for any liability, obligation (other than the obligation to pay principal and interest in respect of the refinanced indebtedness), cost or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium and any other premiums or other amounts due under the Indenture), including any adverse tax consequences or impact, related to or arising out of any such Refinancing transaction, except to the extent of amounts included in Transaction Costs and payable by the Owner Participant as provided herein.
(d) Without Each party agrees to take or cause to be taken all requested action, including, without limitation, the prior written consent execution and delivery of any documents and instruments, including, without limitation, amendments or supplements to the Lease, which may be reasonably necessary or desirable to effect such Refinancing, including, in the case of the Owner Participant, which consent may direction to the Owner Trustee by the Owner Participant to prepay the Certificates then outstanding; provided, however, that such Refinancing shall be withheld in its sole discretion, no such refinancing shall (1) cause subject to the aggregate principal amount satisfaction of each of the indebtedness to be substituted for the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates being refinanced.following conditions:
Appears in 1 contract
Refinancing. (a) Subject to the terms and conditions of this Section 15.01, the Lessee may request the Owner Participant to participate in up to three refinancings (including the refinancing contemplated by this Agreement on the Refunding Date) in whole but not in part, of the Certificates On or prior to the end Initial Borrowing Date, the total commitments in respect of the Basic Term (a "Refinancing"). Such Refinancings may be placed Existing Credit Agreement shall have been terminated, and all loans and notes with respect thereto shall have been repaid in either the private or public markets full, together with interest thereon, all letters of credit issued thereunder and shall be denominated in United States dollars (or in any other foreign currency so long as the Owner Participant is satisfied there is no foreign currency risk to it), contracts contemplated thereunder shall have been terminated and shall be on terms that do not materially adversely affect the Owner Participant. The Owner Participant agrees to negotiate promptly in good faith to conclude an agreement with the Lessee as all other amounts (including premiums) owing pursuant to the terms of any such Refinancing transaction (including the terms of any debt to be issued Existing Credit Agreement shall have been repaid in connection with such refinancing full and the documentation to be executed all documents in connection therewith). Without the prior written consent respect of the Owner Participant, the prospectus Existing Credit Agreement and other offering materials relating to any Refinancing in the form all guarantees with respect thereto shall have been terminated and be of a public offering shall not identify the Owner Participant no further force and shall not include any financial statements of the Owner Participant or any Affiliate thereof. In connection with any such Refinancing in the form of a public offering, the Lessee shall indemnify the Owner Participant in a manner satisfactory to it for any liabilities under federal, state or foreign securities laws resulting from such offering. The aggregate principal amount of the new Certificates issued in connection with each Refinancing shall be the same as the aggregate principal amount outstanding on the Certificates being refinancedeffect.
(b) Notwithstanding anything herein On or prior to the contraryInitial Borrowing Date, no Refinancing will the Borrower shall have repurchased, retired or redeemed all of the outstanding Existing Subordinated Notes for cash, in accordance with their terms, or on such other terms and conditions as may be permitted unless satisfactory to the Owner Participant Agent and the Indenture Trustee shall have received at least 15 days prior written notice (three (3) Business Days Required Banks, and all securities and note purchase agreements, purchase or sale agreements or other agreements pursuant to which the Existing Subordinated Notes were issued and all guaranties and security documents with respect to the refinancing contemplated by this Agreement on the Refunding Date) of the scheduled closing date of such Refinancing and the Owner Participant thereto shall have been provided such longer period as it shall have required for a reasonable opportunity to review the relevant documentation terminated and the Owner Participant shall have determined in good faith that neither it nor the Owner Trustee shall suffer any loss be of no further force or expense or bear any increased risk as a result of such Refinancing (including, without limitation, any risk with respect to taxes or other adverse consequences to the Owner Participant including the application of Revenue Procedures 75-21 and 75-28 and Section 467 of the Code) for which it has not been or will not have been indemnified by the Lessee in a manner reasonably satisfactory to the Owner Participant, nor shall its rights against all other parties taken as a whole be adversely affected compared to such rights in effect under the Operative Agreements prior to such proposed Refinancing. Prior to the consummation of any Refinancing pursuant to this Section 15.01, the Owner Participant and the Lessee shall agree upon a schedule setting forth each installment of Basic Rent and setting forth Stipulated Loss Values and Termination Values payable pursuant to the Lease as a result of the Refinancing in accordance with Section 3.04 of the Lease, and thereafter the amounts set forth in such schedule shall become the amounts payable under the Lease. Upon the consummation of the Refinancing, the evidence of indebtedness issued pursuant to the Refinancing shall be considered "Certificates" for purposes of this Agreement, the Lease and the Indentureeffect.
(c) Notwithstanding On the foregoingInitial Borrowing Date, the Owner Participant creditors in respect of the Indebtedness to be Refinanced shall have no obligation to proceed with any Refinancing transaction terminated and released all security interests and Liens on the assets owned by the Borrower and its Subsidiaries. The Agent shall have received such releases of security interests in and Liens on the assets owned by the Borrower and its Subsidiaries as contemplated may have been requested by this Section 15.01 unless the Lessee indemnifies the Owner Trustee and the Owner Participant by agreement Agent, which releases shall be in form and substance reasonably satisfactory to the Agent. Without limiting the foregoing, there shall have been delivered (i) proper termination statements (Form UCC-3 or the appropriate equivalent) for filing under the UCC of each jurisdiction where a financing statement (Form UCC-1 or the appropriate equivalent) was filed with respect to the Borrower or any of themits Subsidiaries in connection with the security interests created with respect to the Indebtedness to be Refinanced and the documentation related thereto, for (ii) termination or reassignment of any liabilitysecurity interest in, obligation or Lien on, any patents, trademarks, copyrights, or similar interests of the Borrower or any of its Subsidiaries on which filings have been made, (other than iii) terminations of all mortgages, leasehold mortgages, deeds of trust and leasehold deeds of trust created with respect to property of the obligation Borrower or any of its Subsidiaries, in each case, to pay principal and interest secure the obligations in respect of the refinanced indebtedness)Indebtedness to be Refinanced, cost all of which shall be in form and substance reasonably satisfactory to the Agent, (iv) termination notices and agreements with respect to all lockbox, warehousing, bailee and similar agreements, duly acknowledged by all counterparties thereto, all of which shall be in form and substance reasonably satisfactory to the Agent, and (v) all collateral owned by the Borrower or expense (including, without limitation, reasonable attorneys' fees and Make-Whole Premium or other amounts due under any of its Subsidiaries in the Indenture), including any adverse tax consequences or impact, related to or arising out possession of any such Refinancing transaction.
(d) Without the prior written consent of the Owner Participant, which consent may be withheld creditors in its sole discretion, no such refinancing shall (1) cause the aggregate principal amount respect of the indebtedness Indebtedness to be substituted for Refinanced or any collateral agent or trustee under any related security document shall have been returned to the Loan Certificates to exceed the aggregate principal amount of the then outstanding Loan Certificates, (2) cause the weighted average life of Borrower or such indebtedness to be different by more than 6 months than the remaining weighted average life of the then outstanding Loan Certificates, or (3) cause the date of maturity of such indebtedness to be later than the date of maturity of the Loan Certificates being refinancedSubsidiary.
Appears in 1 contract
Sources: Credit Agreement (Labtec Inc /Ma)