Common use of Refunding of Notes Clause in Contracts

Refunding of Notes. Upon compliance with the terms ------------------ and conditions of this Article XII, including without limitation the ----------- satisfaction of the conditions set forth in Section 12.02 hereof, and of ------------- Section 2.12 of the Indenture, either Lessee shall have the right to request Owner Trustee to, and upon such request Owner Participant, Owner Trustee and Indenture Trustee shall cooperate in good faith to, take such steps as may be necessary to refund all of the Notes then outstanding (the "Refunded Notes") -------------- through the issuance and sale in the public or private market of one or more series of notes (the "Refunding Notes"), in an aggregate principal amount which --------------- shall be equal to the unpaid principal amount of the Refunded Notes, the proceeds of such issuance and sale to be applied to prepay the principal amount of such outstanding Refunded Notes. Subject to the limitations set forth in Section 12.02, the amortization or sinking fund schedules for the Refunding ------------- Notes may be different from such schedules for the Refunded Notes. As a condition to such refunding, Lessees will be liable for, and shall pay, on an After-Tax Basis, the reasonable out-of-pocket expenses incurred by Owner Trustee, Indenture Trustee and Owner Participant in connection with such refunding (whether or not such refunding shall be consummated, so long as the failure to consummate such refunding does not result solely from a default by Owner Participant in its obligations hereunder).

Refunding of Notes. Upon compliance with the terms ------------------ and conditions of this Article XII, including without limitation the ----------- satisfaction of the conditions set forth in Section 12.02 hereof, and of ------------- Section 2.12 of the Indenture, either Lessee shall have the right to request Owner Trustee to, and upon such request Owner Participant, Owner Trustee Trustee, Loan Participants and Indenture Trustee Agent shall cooperate in good faith to, take such steps as may be necessary to refund all of the Notes then outstanding (the "Refunded Notes") -------------- on not more than one occasion through the -------------- issuance and sale in the public or private market of one or more series of other notes (the "Refunding --------- Notes"), ) in an aggregate principal amount which --------------- shall be equal to the unpaid ----- principal amount of the Refunded Notes, plus up to two percent (2%) of such unpaid principal amount to cover expenses, the proceeds of such issuance and sale to be applied to prepay the principal amount of such outstanding Refunded NotesNotes and, to the extent available, expenses in connection with such refunding. Subject to the limitations set forth in Section 12.02, the amortization or sinking fund schedules schedule for the Refunding ------------- Notes may be different from such schedules schedule for the Refunded Notes. As a condition to such refunding, Lessees Lessee will be liable for, and shall pay, on an After-Tax Basis, the reasonable out-of-pocket expenses incurred by Owner Trustee, Indenture Trustee Agent, each Loan Participant and Owner Participant in connection with such refunding (whether or not such refunding shall be consummated, so long as the failure to consummate such refunding does not result solely from a default by Owner Participant in its obligations hereunder); provided that Lessee -------- shall not be responsible for the fees and expenses of more than one counsel for Agent and Loan Participants, collectively, nor for any other costs or expenses of the Loan Participants.

Refunding of Notes. Upon compliance with the terms ------------------ and conditions of this Article XII, including without limitation the ----------- satisfaction of the conditions set forth in Section 12.02 hereof, and of Section ------------- Section 2.12 of the Indenture, either Lessee shall have the right to request Owner Trustee to, and upon such request Owner Participant, Owner Trustee and Indenture Trustee shall cooperate in good faith to, take such steps as may be necessary to refund all of the Notes then outstanding (the "Refunded Notes") -------------- through the -------------- issuance and sale in the public or private market of one or more series of notes (the "Refunding Notes"), in an aggregate principal amount which --------------- shall be equal --------------- to the unpaid principal amount of the Refunded Notes, the proceeds of such issuance and sale to be applied to prepay the principal amount of such outstanding Refunded Notes. Subject to the limitations set forth in Section ------- 12.02, the amortization or sinking fund schedules for the Refunding ------------- Notes may be ----- different from such schedules for the Refunded Notes. As a condition to such refunding, Lessees will be liable for, and shall pay, on an After-Tax Basis, the reasonable out-of-of pocket expenses incurred by Owner Trustee, Indenture Trustee and Owner Participant in connection with such refunding (whether or not such refunding shall be consummated, so long as the failure to consummate such refunding does not result solely from a default by Owner Participant in its obligations hereunder).

Refunding of Notes. Upon compliance with the terms ------------------ and ------------------- conditions of this Article XII, including without limitation the ----------- satisfaction of the conditions set forth in Section 12.02 hereof, and of ------------- Section 2.12 of the Indenture, either Lessee shall have the right to request Owner Trustee to, and upon such request Owner Participant, Owner Trustee and Indenture Trustee shall cooperate in good faith to, take such steps as may be necessary to refund all or any portion of the Series B Notes then outstanding (the "Refunded Notes") -------------- on not more than one occasion (exclusive of (i) any Mandatory Refinancing described in Section 10.01, or any other refinancing of the Series A Notes subsequent to the Mandatory Refinancing Date, (ii) any refinancing of any financing arranged by Agent pursuant to Section 10.01(c) or (d) and (iii) any refinancing of the Series F Notes or the Series G Notes) through the issuance and sale in the public or private market of one or more series of other notes (the "Refunding Notes"), ) in an aggregate principal amount which --------------- shall be equal to the unpaid principal amount of the Refunded Notes, plus up to 1% of such unpaid principal amount to cover expenses, the proceeds of such issuance and sale to be applied to prepay the principal amount of such outstanding Refunded NotesNotes and, to the extent available, expenses in connection with such refunding. Subject to the limitations set forth in Section 12.02, the amortization or sinking fund schedules for the Refunding ------------- Notes may be different from such schedules for the Refunded Notes. As a condition to such refunding, Lessees Lessee will be liable for, and shall pay, on an After-Tax Basis, the reasonable out-of-pocket expenses incurred by Owner Trustee, Indenture Trustee and Owner Participant in connection with such refunding (whether or not such refunding shall be consummated, so long as the failure to consummate such refunding does not result solely from a default by Owner Participant in its obligations hereunder).

Refunding of Notes. Upon compliance with the terms ------------------ and conditions of this Article XIISection 15, including including, without limitation limitation, the ----------- satisfaction of the conditions set forth in Section 12.02 hereof, 15.2 and of ------------- in Section 2.12 3.05(a) of the Indenture, either the Lessee shall have the right right, at its option and expense, on two occasions prior to request Owner Trustee to, and upon such request Owner Participant, Owner Trustee and Indenture Trustee shall cooperate in good faith to, take such steps as may be necessary the expiration of the Lease Term to cause the Lessor to refund or refinance (a “Refunding”) all of the Notes then outstanding Outstanding (the "“Refunded Notes"”) -------------- through the issuance and sale in the public or private market of one or more additional series of notes Notes (the "“Refunding Notes"”), in an aggregate principal amount which --------------- shall be equal to the unpaid principal amount of the Refunded NotesNotes plus any accrued and unpaid interest on the Refunded Notes not paid by the Lessee as contemplated in clause (d) of this Section 15.1, the proceeds of such issuance and sale to be applied to prepay or redeem the principal amount of such outstanding Refunded Notes. Subject The Lessee’s right to refund or refinance the Notes is subject to the limitations set forth in Section 12.02following conditions: (a) (i) the fees and expenses of any such Refunding (including, the amortization or sinking fund schedules for the Refunding ------------- Notes may be different from such schedules for without limitation, any premium payable with respect to the Refunded Notes. As a condition to such refunding, Lessees will ) shall be liable forborne by the Lessee on an After-Tax Basis and (ii)(A) there shall be no adverse effect on the Owner Participant’s Net Economic Return, and (B) unless the Owner Participant consents in its sole discretion, the scheduled final maturity of the Refunding Notes shall payoccur no later than the scheduled final maturity of the Refunded Notes; (i) the Lessee has agreed in writing to indemnify the Owner Participant, on an After-Tax Basis, for any adverse tax consequences attributable to such Refunding, in form and substance acceptable to the Owner Participant, and (ii) the Owner Participant shall have received a “will” opinion (in form and substance acceptable to the Owner Participant) that the Owner Participant will (taking into account all Base Rent adjustments pursuant to Article IV of the Lease) suffer no adverse tax consequences as a result thereof; (c) the appropriate parties having entered into a note purchase agreement providing for the issuance and sale by the Lessor on the date specified in such agreement (for the purposes of this Section 15.1, the “Refunding Date”) of Refunding Notes the proceeds of which shall be used to repay all of the outstanding Refunded Notes on the Refunding Date; (d) the Refunding shall occur only on a Base Rent Payment Date; (e) the Lessor having entered into an agreement to provide for the securing thereunder of the Refunding Notes in like manner as the Refunded Notes and/or will enter into such amendments and supplements to the Indenture as may be necessary to effect a Refunding under this Section 15.1; (f) the identity of the Owner Participant having not been disclosed in offering materials used in connection with such Refunding pursuant to a public offering or a private offering under Rule 144A and each of the Owner Participant and Lessor shall not: (i) incur liability as the “issuer”, “obligor” or “underwriter” for Federal or state securities law purposes, or (ii) be the “issuer”, “obligor” or “underwriter” for Federal securities law purposes, and the offering materials (including any registration statement for the transaction) shall be reasonably satisfactory to the Owner Participant and the Lessor, and shall not in any event identify the Owner Participant without the Owner Participant’s written consent, which consent may be withheld in its sole and absolute discretion; (g) the Lessee having paid to the Lessor as Supplemental Rent an amount equal to the Swap Breakage Amount, if any, and all other amounts payable in respect of the Refunded Notes and, on an After-Tax Basis, all reasonable fees, costs and expenses of such Refunding, including, without limitation, the Owner Participant’s, the Indenture Trustee’s and the Loan Participant’s out-of-pocket expenses incurred by and reasonable counsel fees and expenses; (h) the Lessee having caused legal opinions in form and substance reasonably satisfactory to the Owner Participant, the Lessor, the Lessor Trustee, the Indenture Trustee and the Loan Participants to be addressed to the Owner Participant Participant, the Lessor, the Lessor Trustee, the Indenture Trustee and the Loan Participants with respect to federal and state securities laws insofar as such laws relate to the refunding or refinancing; (i) all documents, instruments, certificates and opinions evidencing and/or delivered in connection with such refunding the Refunding Notes being in form and substance satisfactory to the Owner Participant, the Lessor, the Lessor Trustee, the Loan Participants and the Indenture Trustee; (whether or not such refunding j) each purchaser of Refunding Notes having been required to comply with the obligations of a Loan Participant hereunder (including, without limitation, making the representations and warranties under Section 7); (k) the Base Rent, the Base Rent Percentages, Base Termination Value percentages and Termination Value Percentages and, in each case, the Allocated Rent and Section 467 Loan Balance percentages related thereto, shall be consummatedadjusted in accordance with Section 4 of the Lease; provided that the spread between the Equity Portion of Base Termination Value Percentage and Termination Value Percentage multiplied in each case by Lessor’s Cost, so long on the one hand, and $15,000,000, on the other hand, shall not exceed the spread that existed prior to the refinancing or refunding on each applicable Termination Value Determination Date; (l) without limiting the foregoing, the terms and conditions of the Refunding will not be any less favorable taken as a whole to the Owner Participant than the terms and conditions of the Refunded Notes; (m) with respect to each such refinancing the Owner Participant shall have received a fee from the Lessee in an amount to be mutually agreed upon by the Guarantor and the Owner Participant; and (n) the Participants, the Indenture Trustee, the Lessor and Lessor Trustee shall have received (x) an amendment and confirmation of the existing Guaranty duly executed by the Guarantor or (y) a replacement guaranty from the Guarantor in form and substance substantially the same as the failure to consummate such refunding does not result solely from a default by Owner Participant Guaranty, in its each case in favor of the Participants, the Indenture Trustee, the Lessor and Lessor Trustee whereby the Guarantor guarantees the obligations hereunder)of the Lessee under the Operative Documents then remaining in force and effect.