Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below): (a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements; (b) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing; (c) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1; (d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein; (e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee; (f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered; (g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default; (h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons; (i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code; (j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing; (k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing; (l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and (m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 4 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Restrictions on Transfer of Beneficial Interest. The Owner Participant covenants and agrees that it shall not, directly or indirectly, sell, convey, not during the Facility Lease Term assign, pledgeconvey or transfer any of its right, mortgage title or otherwise interest in the Beneficial Interest without the prior written consent of Midwest and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that the Owner Participant may assign, convey or transfer all or any part of its interest in the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form Person (the “Transferee”) which shall assume the duties and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by Documents with respect to the interest being transferred pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit J hereto, if each of the following conditions shall have been satisfied:
(a) Midwest, NRG, the Owner Trustee and, so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee shall have received an opinion of counsel, which opinion and counsel are reasonably satisfactory to each recipient thereof, to the effect that such Affiliate as Assignment and Assumption Agreement is a legal, valid and binding obligation of, and is enforceable against, each party thereto, that all regulatory approvals required herein in connection with such transfer or (iii) an Affiliate of necessary to assume the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its ’s obligations under this Agreement the Operative Documents shall have been obtained and that the other Operative Agreementsproposed transfer of the Beneficial Interest will not require registration the Securities Act;
(b) neither the Transferee nor any shall be a “United States person” within the meaning of its Affiliates shall compete (directly or indirectlySection 7701(a)(30) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee Code;
(c) the Transferee or TILC; provided that this clause (b) shall not apply a guarantor of such Transferee meets the following criteria: (i) the Consolidated Tangible Net Assets of at least equal to any Transferee that is an Affiliate of the Owner Participant and $75 million calculated in accordance with GAAP, (ii) agrees to be bound by the terms of the Operative Documents pursuant to an Assumption and Assignment Agreement substantially in the event that a form of Exhibit J hereto, and (iii) so long as no Lease Event of Default shall have occurred and be continuing, such Transferee is not a Competitor of, or in material litigation with, Midwest or any Affiliate of Midwest, unless waived by Midwest;
(cd) each the transferring Owner Participant shall pay, without any right of indemnification from Midwest or any other Person, all reasonable documented out-of-pocket costs, fees and expenses incurred in connection with any such transfer by (i) the Indenture Trusteeother Lease Financing Parties, except Midwest and NRG, and (ii) Midwest and NRG, so long as no Lease Event of Default shall have occurred and be continuing; and
(e) following such transfer, there shall be not more than two Owner Participants with interests (Undivided Interests or beneficial trust interests) in the Facility. For purposes of Section 10.1(c), a “Competitor” of Midwest shall be an entity (other than an entity which on the Plan Effective Date is the Other Owner Participant or an Affiliate thereof) which, or an Affiliate of which, is significantly involved as a seller or trader of capacity or energy in the electricity market; provided that the foregoing restriction shall not apply in the case of a Transferee that is an Affiliate of such a seller or trader so long as (i) such Transferee is an entity involved in making passive investments such as the Owner Participant’s contemplated investment in this transaction, (ii) such Transferee has in place procedures which shall be reasonably acceptable to Midwest to prevent such Affiliate that is a seller or trader of capacity from acquiring confidential information relating to such passive investments and agrees in writing with Midwest to maintain and abide by such procedures, and (iii) neither such Transferee nor any Affiliate thereof is an entity that is (x) actively involved in the generation of electricity in PJM Interconnection or Midcontinent Independent System Operator, Inc, or any successor thereto, or (y) on the List of Competitors, attached hereto as Exhibit K, which may, from time to time, but no more often than once per year, be modified by Midwest, and shall contain a list of up to six entities (including Affiliates) which Midwest reasonably believes in its good faith judgment are Competitors of Midwest. Notwithstanding the foregoing, the restrictions set forth above in Sections 10.1(a) or (c)(1) and (c)(3) shall not inure to the benefit of Midwest if such transfer is in connection with the exercise of remedies during a Lease Event of Default.
(f) Neither Midwest nor NRG shall be responsible for any adverse tax consequence to the Owner Lessor or the Owner Participant resulting from any transfer pursuant to this Section 10.1 and the Pricing Assumptions (as set forth on Schedule 10.1(c) to the Original Participation Agreement) shall not be changed as a result of any such transfer except if such transfer is in connection with the exercise of remedies during a Lease Event of Default.
(g) The Owner Participant shall give the Owner Lessor, the Owner Trustee, the Lessee Lease Indenture Trustee, the Pass Through Trustee, NRG and the Policy Provider shall have received 10 days Midwest thirty (30) days’ prior written notice of such transfer, or ten (10) days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;10.1. If requested by the Owner Participant, the Lease Indenture Trustee or any Pass Through Trustee, Midwest shall acknowledge qualifying transfers.
(dh) Upon any such transfer in compliance with this Section 10.1, (i) such Transferee enters into an agreement (i) in shall, to the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each extent of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected Beneficial Interest conveyed to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (iix) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "“Owner Participant" ” for all purposes, and shall (y) enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under the Assignment and Assumption Agreement, the Owner Participant Guaranty and each other Operative Agreement Document to which the such Owner Participant is a party, and, except as the context otherwise requires, and each reference in this Agreement Agreement, the Assignment and Assumption Agreement, the Owner Participant Guaranty and each other Operative Agreement Document to the "“Owner Participant" ” shall thereafter be deemed to include such Transferee for all purposes Transferee, to the extent of the interest transferredBeneficial Interest conveyed to the Transferee, for all purposes and (ii) the transferortransferor Owner Participant and the Guarantor, except to the extent provided in Section 6.1(1) hereof and except in the case if any, of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, such transferor Owner Participant’s obligations shall be released from all obligations hereunder and under each other Operative Agreement Document to which such transferor or Guarantor is a party or by which such transferor Owner Participant or Guarantor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, furtherhowever, that in no event shall any such transfer or assignment waive or release the transferor or its Guarantor from any liability on account of any breach existing immediately prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection occurring simultaneously with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participanttransfer.
Appears in 2 contracts
Samples: Participation Agreement (Midwest Generation LLC), Participation Agreement (Midwest Generation LLC)
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and or (ii) in the event that a Lease Event of Default shall have occurred and be continuing;
(c) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing;
(c) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(bSection
6.1 (b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.or
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consentconsent (which consent shall not be unreasonably withheld); provided that provided, however, no such consent shall be required in connection with any indirect transfer of the Beneficial Interest resulting from (i) any direct or indirect change of control of Philip Morris Capital Corporation or change of control of any direxx xx ixxxxxxt parent of Philip Morris Capital Corporation or (ii) any transfer of substantxxxxx axx xx the assets of Philip Morris Capital Corporation as an entirety; provided, furthex, xxxt xx xxch consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):satisfied:
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) so long as no Lease Event of Default has occurred and is continuing, neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided provided, that this clause (b) no Transferee or Affiliate thereof shall not apply be deemed to (i) to any Transferee that is an Affiliate of the Owner Participant and be engaged in railcar leasing or (ii) hold (directly or indirectly) any material interest in any business Participation Agreement (TRLI 2001-1C) that is competitive with Lessee's or TILC's railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the foregoing) of any of such Person's interest in any equipment or facilities directly or indirectly owned, leased or otherwise controlled pursuant to any such Person's passive investment or loan participation in the event that financing of any such equipment or facilities used in railcar leasing or any re-leasing or sale of any rail equipment which is returned to or repossessed by or on behalf of such Person from a Lease Event of Default shall have occurred and be continuinglessee or borrower in connection with a lease financing or lender transaction entered into by such Person as a passive lessor, investor or lender;
(c) each of the Indenture Trustee, the Owner Trustee, Trustee and the Lessee and the Policy Provider shall have received 10 days (or, if a Lease Event of Default shall have occurred and is continuing and the proposed Transferee or any of its Affiliates would not, but for the occurrence of such Lease Event of Default, have satisfied the requirements set forth in Section 6.1(b) above or Section 6.1(l) below, fifteen (15) Business Days) prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing)Lessee, the Owner Trustee and the Indenture Trustee and which may be internal counsel of the Policy ProviderTransferee), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the TransfereeTransferee (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact), (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee, which opinion Participation Agreement (TRLI 2001-1C) shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee;
(f) such transfer complies in all respects with and does not violate any applicable provisions of the federal securities laws and the securities law of any applicable state or any other applicable law;
(g) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy ProviderIndenture Trustee, the terms of the Operative Agreements shall not be altered;
(gh) after giving effect to such transfer, the Beneficial Interest and the beneficial interests with respect to the Other Trusts shall be held by not more than two three Persons in the aggregate; provided that for the purpose of calculating the number of Persons under this Section 6.1(h), except if such transfer occurs after the occurrence and during the continuance Persons that are Affiliates of a Lease Event of Defaulteach other shall be considered to be one Person;
(hi) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(ij) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(jk) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(kl) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which who is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(lm) the Transferee (i) is a U.S. "United States Person, provided that " within the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons meaning of Section 7701(a)(30) of the Code or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of is acquiring such Beneficial Interest is effectively connected in connection with such trade or business; andand Participation Agreement (TRLI 2001-1C)
(mn) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified contained herein; provided that no such Officer's Certificate is required in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and Lessee (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after or Lessee's receipt of notice of such proposed transfer from an Owner Participantdesignee) pursuant to Section 6.9.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consentconsent (which consent shall not be unreasonably withheld); provided that provided, however, no such consent shall be required in connection with any indirect transfer of the Beneficial Interest resulting from (i) any direct or indirect change of control of Philip Morris Capital Corporation or change of control of any direxx xx ixxxxxxt parent of Philip Morris Capital Corporation or (ii) any transfer of substantxxxxx axx xx the assets of Philip Morris Capital Corporation as an entirety; provided, furthex, xxxt xx xxch consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):satisfied:
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) so long as no Lease Event of Default has occurred and is continuing, neither the Transferee nor any of its Affiliates shall compete (directly or Participation Agreement (TRLI 2001-1B) indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided provided, that this clause (b) no Transferee or Affiliate thereof shall not apply be deemed to (i) to any Transferee that is an Affiliate of the Owner Participant and be engaged in railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with Lessee's or TILC's railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the foregoing) of any of such Person's interest in any equipment or facilities directly or indirectly owned, leased or otherwise controlled pursuant to any such Person's passive investment or loan participation in the event that financing of any such equipment or facilities used in railcar leasing or any re-leasing or sale of any rail equipment which is returned to or repossessed by or on behalf of such Person from a Lease Event of Default shall have occurred and be continuinglessee or borrower in connection with a lease financing or lender transaction entered into by such Person as a passive lessor, investor or lender;
(c) each of the Indenture Trustee, the Owner Trustee, Trustee and the Lessee and the Policy Provider shall have received 10 days (or, if a Lease Event of Default shall have occurred and is continuing and the proposed Transferee or any of its Affiliates would not, but for the occurrence of such Lease Event of Default, have satisfied the requirements set forth in Section 6.1(b) above or Section 6.1(l) below, fifteen (15) Business Days) prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing)Lessee, the Owner Trustee and the Indenture Trustee and which may be internal counsel of the Policy ProviderTransferee), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the TransfereeTransferee (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact), (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with 48 Participation Agreement (TRLI 2001-1B) its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee;
(f) such transfer complies in all respects with and does not violate any applicable provisions of the federal securities laws and the securities law of any applicable state or any other applicable law;
(g) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy ProviderIndenture Trustee, the terms of the Operative Agreements shall not be altered;
(gh) after giving effect to such transfer, the Beneficial Interest and the beneficial interest with respect to the Other Trust shall be held by not more than two Persons in the aggregate; provided that for the purpose of calculating the number of Persons under this Section 6.1(h), except if such transfer occurs after the occurrence and during the continuance Persons that are Affiliates of a Lease Event of Defaulteach other shall be considered to be one Person;
(hi) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(ij) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(jk) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(kl) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which who is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(lm) the Transferee (i) is a U.S. "United States Person, provided that " within the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons meaning of Section 7701(a)(30) of the Code or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code 49 Participation Agreement (TRLI 2001-1B) and its acquisition of is acquiring such Beneficial Interest is effectively connected in connection with such trade or business; and
(mn) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified contained herein; provided that no such Officer's Certificate is required in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and Lessee (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after or Lessee's receipt of notice of such proposed transfer from an Owner Participantdesignee) pursuant to Section 6.9.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Restrictions on Transfer of Beneficial Interest. (a) The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (bii) or (kxi) below):
(ai) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (iI) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (iiII) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (iI) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iiiIII) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iiiIII) which does not qualify under clauses (iI) or (iiII), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(bii) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (bii) shall not apply (iI) to any Transferee that is an Affiliate of the Owner Participant and (iiII) in the event that a Lease Event of Default shall have occurred and be continuing;
(ciii) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.16.1(a);
(div) such Transferee enters into an agreement (iI) in the form attached hereto as Exhibit C or (iiII) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(ev) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (iI) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (iiII) that each agreement referred to in Section 6.1(d6.1(a)(iv) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iiiIII) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(fvi) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(gvii) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(hviii) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(iix) such transfer either (iI) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (iiII) if clause (iI) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(jx) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(kxi) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b6.1(a)(ii), provided that the Lessee may waive this requirement in writing;
(lxii) the Transferee (iI) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (iiII) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(mxiii) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (aa)(i), (gvii), (iix), (jx) and (lxii) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(16.1(a)(xii) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii6.1(a)(i)(III) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d6.1(a)(iv) and (ev) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consentconsent (which consent shall not be unreasonably withheld); provided that provided, however, no such consent shall be required in connection with any indirect transfer of the Beneficial Interest resulting from (i) any direct or indirect change of control of Philip Morris Capital Corporation or change of control of any direxx xx ixxxxxxt parent of Philip Morris Capital Corporation or (ii) any transfer of substantxxxxx axx xx the assets of Philip Morris Capital Corporation as an entirety; provided, furthex, xxxt xx xxch consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):satisfied:
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) so long as no Lease Event of Default has occurred and is continuing, neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in Participation Agreement (TRLI 2001-1A) 51 any respect material to the full service railcar leasing business of the Lessee or TILC; provided provided, that this clause (b) no Transferee or Affiliate thereof shall not apply be deemed to (i) to any Transferee that is an Affiliate of the Owner Participant and be engaged in railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with Lessee's or TILC's railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the foregoing) of any of such Person's interest in any equipment or facilities directly or indirectly owned, leased or otherwise controlled pursuant to any such Person's passive investment or loan participation in the event that financing of any such equipment or facilities used in railcar leasing or any re-leasing or sale of any rail equipment which is returned to or repossessed by or on behalf of such Person from a Lease Event of Default shall have occurred and be continuinglessee or borrower in connection with a lease financing or lender transaction entered into by such Person as a passive lessor, investor or lender;
(c) each of the Indenture Trustee, the Owner Trustee, Trustee and the Lessee and the Policy Provider shall have received 10 days (or, if a Lease Event of Default shall have occurred and is continuing and the proposed Transferee or any of its Affiliates would not, but for the occurrence of such Lease Event of Default, have satisfied the requirements set forth in Section 6.1(b) above or Section 6.1(l) below, fifteen (15) Business Days) prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing)Lessee, the Owner Trustee and the Indenture Trustee and which may be internal counsel of the Policy ProviderTransferee), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the TransfereeTransferee (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact), (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) Participation Agreement (TRLI 2001-1A) 52 compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee;
(f) such transfer complies in all respects with and does not violate any applicable provisions of the federal securities laws and the securities law of any applicable state or any other applicable law;
(g) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy ProviderIndenture Trustee, the terms of the Operative Agreements shall not be altered;
(gh) after giving effect to such transfer, the Beneficial Interest and the beneficial interest with respect to the Other Trust shall be held by not more than two Persons in the aggregate; provided that for the purpose of calculating the number of Persons under this Section 6.1(h), except if such transfer occurs after the occurrence and during the continuance Persons that are Affiliates of a Lease Event of Defaulteach other shall be considered to be one Person;
(hi) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(ij) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(jk) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(kl) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which who is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(lm) the Transferee (i) is a U.S. "United States Person, provided that " within the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons meaning of Section 7701(a)(30) of the Code or (ii) is engaged in a United States Participation Agreement (TRLI 2001-1A) 53 trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of is acquiring such Beneficial Interest is effectively connected in connection with such trade or business; and
(mn) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified contained herein; provided that no such Officer's Certificate is required in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and Lessee (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after or Lessee's receipt of notice of such proposed transfer from an Owner Participantdesignee) pursuant to Section 6.9.
Appears in 2 contracts
Samples: Participation Agreement (Trinity Industries Inc), Participation Agreement (Trinity Industries Inc)
Restrictions on Transfer of Beneficial Interest. (a) The Owner Participant covenants and agrees that it shall not, directly or indirectly, sell, convey, not during the Facility Lease Term assign, pledgeconvey or transfer any of its right, mortgage title or otherwise interest in the Beneficial Interest without the prior written consent of Midwest and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustees; PROVIDED, HOWEVER, that the Owner Participant may assign, convey or transfer all or any part of its interest in the Beneficial Interest without such consent to a Person (collectively, for purposes of this Section 6.1, a the "transferTRANSFEREE") prior to which shall assume the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital duties and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by Documents with respect to the interest being transferred pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit LL hereto, if each of the following conditions shall have been satisfied:
(i) Midwest, EME, the Owner Trustee and, so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees shall have received an opinion of counsel, which opinion and counsel are reasonably satisfactory to each recipient thereof, to the effect that such Affiliate as Assignment and Assumption Agreement is a legal, valid and binding obligation of, and is enforceable against, each party thereto, that all regulatory approvals required herein in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained and that the proposed transfer of the Beneficial Interest will not require registration the Securities Act;
(ii) the Transferee shall be a "United States person" within the meaning of Section 7701(a)(30) of the Code;
(iii) an Affiliate the Transferee or a guarantor of such Transferee meets the following criteria: (1) the Consolidated Tangible Net Assets of at least equal to $75 million calculated in accordance with GAAP, (2) agrees to be bound by the terms of the Owner Participant; provided that Operative Documents pursuant to an Assumption and Assignment Agreement substantially in the event form of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii)Exhibit LL hereto, the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and (ii3) in the event that a so long as no Lease Event of Default shall have occurred and be continuing, such Transferee is not a Competitor of, or in material litigation with, Midwest or any Affiliate of Midwest, unless waived by Midwest;
(civ) each the transferring Owner Participant shall pay, without any right of the Indenture Trusteeindemnification from Midwest or any other Person, the Owner Trusteeall reasonable documented out-of-pocket costs, the Lessee fees and the Policy Provider shall have received 10 days prior written notice of expenses incurred in connection with any such transfer specifying by (x) the name other Lease Financing Parties, except Midwest and address of any proposed Transferee EME, and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(dy) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form Midwest and substance reasonably satisfactory to each of the Lessee (EME, so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(mv) following such transfer, there shall be not more than two Owner Participants with interests (Undivided Interests or beneficial trust interests) in the Owner Participant shall deliver to Facility.
(b) For purposes of the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses preceding clause (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee a "COMPETITOR" of Midwest shall be deemed an entity (other than an entity which on the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Closing Date is Other Owner Participant to or an Affiliate thereof) which, or an Affiliate of which, is significantly involved as a seller or trader of capacity or energy in the extent of electricity market; PROVIDED that, the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" foregoing restriction shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except not apply in the case of a transfer Transferee that is an Affiliate of such a seller or trader so long as (i) such Transferee is an entity involved in making passive investments such as the Owner Participant's contemplated investment in this transaction, (ii) such Transferee has in place procedures which shall be reasonably acceptable to Midwest to prevent such Affiliate that is a seller or trader of capacity from acquiring confidential information relating to such passive investments and agrees in writing with Midwest to maintain and abide by such procedures, and (iii) neither such Transferee described nor any Affiliate thereof is an entity that is (x) actively involved in the proviso generation of electricity in Mid-American Interconnected Network and/or the East Central Reliability Council or any successor thereto, or (y) on the List of Competitors, attached hereto as Exhibit MM, which may, from time to Section 6.1(a)(iiitime, but no more often than once per year, be modified by Midwest, and shall contain a list of up to six entities (including Affiliates) hereofwhich Midwest reasonably believes in its good faith judgment are Competitors of Midwest. Notwithstanding the foregoing, the restrictions set forth in clause (i) or (iii)(1) and (iii)(3) of SECTION 10.1(a) above shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely not inure to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any benefit of Midwest if such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered is in connection with such transfer in accordance with the terms exercise of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed remedies during a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 2 contracts
Samples: Participation Agreement (Edison Mission Energy), Participation Agreement (Edison Mission Energy)
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the its Beneficial Interest (collectivelyInterest, for purposes of this except to Lessee in accordance with Section 6.1, a "transfer"23(c) prior to the expiration or earlier termination of the Lease Term without the Lessee's and(to which transfer Indenture Trustee hereby consents), so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):unless:
(a) the Person to whom such transfer is to be made (a "“Transferee"”) is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional a Person that is organized as a corporation, limited liability company, partnership or corporate investor other legal entity under the laws of the United States or any state or territory thereof or the District of Columbia with tangible net worth or, in the case of a bank or lending institution, combined capital and or surplus at the time of such transfer, transfer of at least US $75,000,00075,000,000 (without regard to the transactions contemplated hereby), all of the foregoing determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an Affiliate any United States subsidiary or United States affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such subsidiary or affiliate pursuant to a guaranty in form and substance an instrument or instruments reasonably satisfactory to the Lessee the obligations of the Lessee, Owner Participant under the Operative Agreements assumed by such Affiliate as required herein Trustee and Indenture Trustee or (iii) an Affiliate any United States subsidiary or United States affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the transferring Owner Participant shall remain if the transferring Owner Participant remains liable for all obligations of its obligations Owner Participant under this Agreement and each of the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete be (i) directly or indirectly) (other than as a passive investor or loan participant involved in the financing rail transportation business (it being understood that operating lessors and passive equity and debt investors (including lessors) in railroad rolling stock and facilities are not directly involved in the rail transportation business), (ii) a competitor of equipment or facilities used Lessee in railcar leasingLessee’s primary business, (iii) with at the time of the proposed transfer, a substantial investor in Lessee or TILC any Affiliate of Lessee attempting a merger, acquisition or other takeover of Lessee or any Affiliate of Lessee which merger, acquisition or other takeover shall not have been approved by the Board of Directors of Lessee or such Affiliate or otherwise be perceived by Lessee or such Affiliate to be hostile to the management of Lessee or such Affiliate, (unless such noniv) an adverse plaintiff or defendant in any then-competition requirement existing litigation or any then-existing third-party arbitration involving Lessee or an Affiliate of Lessee, or (v) the potential plaintiff in any litigation which has been waived threatened, in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the writing, against Lessee or TILCan Affiliate of Lessee; provided that this clause (b) shall not apply (i) to any Transferee that is if a Specified Default or an Affiliate of the Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing, the requirements set forth above in this subsection (b) shall not apply to such transfer;
(c) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider Owner Trustee shall have received 30 days’ (10 days in the case of a transfer to an Affiliate) prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.16.1 and Section 8.01 of the Trust Agreement;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise agreements in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Lessee, Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. (a) The Owner Participant covenants and agrees that it shall not, not directly or indirectly, sell, convey, indirectly assign, pledgeconvey or transfer any of its right, mortgage title or otherwise transfer all or any part of interest in the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's prior written consent of Old Dominion, so long as no Event of Default has occurred and is continuing, and, so long as any Equipment Notes the Loans are outstanding, the Indenture Trustee's prior written consentAgent; provided PROVIDED, HOWEVER, that no the Owner Participant may assign, convey or transfer all of its interest in the Beneficial Interest without such consent shall be required if to a Person (the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in which shall assume the case of a bank or lending institution, combined capital duties and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or Documents pursuant to an assumption agreement substantially in the form of Exhibit O hereto, which Transferee shall be either (iiii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) Participant which does not otherwise qualify under clauses clause (iii) below, provided that all of the payment and performance obligations of the Transferee under the Operative Documents shall be guaranteed by the Owner Participant pursuant to a guaranty substantially in the form of Exhibit P hereto or (ii)) a Person which meets, or the payment and performance obligations of which under the Operative Documents are guaranteed (pursuant to a guaranty substantially in the form of Exhibit P hereto) by a Person which meets, the following criteria: (A) the tangible net worth of the Transferee or guarantor, if any, is at least equal to $100 million; (B) the Transferee and the guarantor, if any, is a financial institution, corporation or business trust; (C) the Transferee will be a "United States person" within the meaning of 7701(a)(30) of the Code; (D) so long as no Event of Default has occurred and is continuing and except at the end of the Term of the Equipment Operating Lease if Old Dominion has not elected to exercise the Purchase Option, such Transferee is not a direct competitor of Old Dominion. Notwithstanding the foregoing, the Owner Participant covenants and agrees for the benefit of Virginia Power that it shall remain liable for all not directly or indirectly assign, convey or transfer any of its obligations under this Agreement and right, title or interest in the other Operative Agreements;Beneficial Interest to a direct competitor (or an Affiliate thereof) of Virginia Power without the prior written consent of Virginia Power.
(b) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the The Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing;
(c) each of the Indenture Trustee, the Owner Trustee, the Lessee give Old Dominion and the Policy Provider shall have received 10 Agent 30 days prior written notice of such transfer, or 10 days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;5.
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form 1. All reasonable fees, expenses and substance reasonably satisfactory to each charges of the Lessee Agent and Old Dominion (so long as no Lease Event of Default is continuingincluding reasonable attorneys' fees) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each any such transfer (or proposed transfer), including any of such Beneficial Interest the foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the transferring or transferee Owner Participant, except if without any right of indemnification from Old Dominion or any other Person; PROVIDED, HOWEVER, that the Owner Participant shall have no obligation to pay such fees, expenses or charges as a result of any transfer occurs after the occurrence and during the continuance of a Lease occasioned by an Event of Default, provided that the Lessee in which case Old Dominion shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;costs.
(ic) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer in compliance with this Section 5.1, (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement Document to which the such Owner Participant is a party, and, except as the context otherwise requires, and each reference in this Agreement and each other Operative Agreement Document to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferortransferor Owner Participant and the guarantor, except to the extent provided in Section 6.1(1) hereof and except in the case if any, of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, such transferor Owner Participant's obligations shall be released from all obligations hereunder and under each other Operative Agreement Document to which such transferor or guarantor is a party or by which such transferor Owner Participant or guarantor is bound solely to the extent such obligations are expressly assumed by a Transferee; and providedPROVIDED, furtherHOWEVER, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing immediately prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection occurring simultaneously with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participanttransfer.
Appears in 1 contract
Samples: Participation Agreement (Old Dominion Electric Cooperative)
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the its Beneficial Interest (collectivelyInterest, for purposes of this except to Lessee in accordance with Section 6.1, a "transfer"23(c) prior to the expiration or earlier termination of the Lease Term without the Lessee's and(to which transfer Indenture Trustee hereby consents), so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):unless:
(a) the Person to whom such transfer is to be made (a "“Transferee"”) is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) a Person that is an institutional investor organized as a corporation, limited liability company, partnership or corporate investor other legal entity under the laws of the United States or any state or territory thereof or the District of Columbia with tangible net worth or, in the case of a bank or lending institution, combined capital and or surplus at the time of such transfer, transfer of at least US $75,000,000, all of the foregoing determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an Affiliate any United States subsidiary or United States affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such subsidiary or affiliate pursuant to a guaranty in form and substance an instrument or instruments reasonably satisfactory to Lessee, Owner Trustee and Indenture Trustee or (iii) any United States subsidiary or United States affiliate of the Lessee original Owner Participant if the original Owner Participant remains liable for all obligations of Owner Participant under each of the Operative Agreements or OP Guarantor guarantees the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative AgreementsTransferee;
(b) neither the Transferee nor any of its Affiliates shall compete be (i) directly or indirectly) (other than as a passive investor or loan participant involved in the financing transportation business (it being understood that operating lessors and passive equity and debt investors (including lessors) in railroad rolling stock and facilities are not directly involved in the transportation business), (ii) a competitor of equipment or facilities used Lessee in railcar leasingLessee’s primary business, (iii) with at the time of the proposed transfer, a substantial investor in Lessee or TILC any Affiliate of Lessee attempting a merger, acquisition or other takeover of Lessee or any Affiliate of Lessee which merger, acquisition or other takeover shall not have been approved by the Board of Directors of Lessee or such Affiliate or otherwise be perceived by Lessee or such Affiliate to be hostile to the management of Lessee or such Affiliate, (unless such noniv) an adverse plaintiff or defendant in any then-competition requirement existing litigation or any then-existing third-party arbitration involving Lessee or an Affiliate of Lessee, or (v) the potential plaintiff in any litigation which has been waived threatened, in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the writing, against Lessee or TILCan Affiliate of Lessee; provided that this clause (b) shall not apply (i) to any Transferee that is if a Specified Default or an Affiliate of the Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing, the requirements set forth in this subsection (b) above shall not apply to such transfer;
(c) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider Owner Trustee shall have received 30 days’ (10 days in the case of a transfer to an Affiliate) prior written notice of such transfer specifying the name and address of any proposed Transferee transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.16.1 and Section 8.01 of the Trust Agreement;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise agreements in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Lessee, Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the its Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's andconsent (which consent shall not be unreasonably withheld); provided, so long as any Equipment Notes are outstandinghowever, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):satisfied:
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, US$75,000,000 determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an any Affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such Affiliate pursuant to a guaranty in form and substance an instrument or instruments reasonably satisfactory to the Lessee the obligations of Lessee, the Owner Participant under Trustee and the Operative Agreements assumed by such Affiliate as required herein Indenture Trustee or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) so long as no Lease Event of Default has occurred and is continuing, neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) be a direct competitor (other than as a passive investor or loan participant in the financing of equipment or facilities used in full service railcar leasing) with of the Lessee in the business of leasing rail cars under full service operating leases; provided, that no Transferee or TILC Affiliate thereof shall be deemed to (unless such non-competition requirement has been waived i) be engaged in writing by the Lessee and TILC) in any respect material to the full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with Lessee's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the Lessee foregoing), of any of such Person's interest in any equipment or TILC; provided that this clause (b) shall not apply (i) facilities directly or indirectly owned, leased or otherwise controlled pursuant to any Transferee that such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is an returned to or repossessed by or on behalf of the Owner Participant or any Affiliate of the Owner Participant and (ii) from a lessee or borrower in connection with a lease financing or lender transaction entered into by the event that Owner Participant or such Affiliate as a Lease Event of Default shall have occurred and be continuingpassive lessor, investor or lender;
(c) each of the Indenture Trustee, the Owner Trustee, Trustee and the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) [RESERVED];
(e) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise agreements in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and Lessee, the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(ef) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing)Lessee, the Owner Trustee and the Indenture Trustee and which may be internal counsel of the Policy ProviderTransferee), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the TransfereeTransferee (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact), (ii) that each agreement referred to in Section 6.1(dsubparagraph (e) above is the legal, valid, binding and binding enforceable obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal laws and regulations including Federal securities laws and securities laws of the Transferee's domiciledomicile and other jurisdictions reasonably identified by the Lessee, the Owner Trustee or the Indenture Trustee as potentially applicable to the transfer, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event each of Default is continuing) and the Indenture Trusteethem;
(fg) such transfer complies in all respects with and does not violate any applicable provisions of the federal securities law and the securities law of any applicable state;
(h) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy ProviderIndenture Trustee, the terms of the Operative Agreements shall not be altered;
(gi) in the case of a transfer by the original Owner Participant, the original Owner Participant shall have delivered on a timely basis the certificates required pursuant to Section 7.1(c)(vi) hereof;
(j) no Owner Participant shall hold less than 10% of the Beneficial Interest after giving effect to such transfer, ; and the Beneficial Interest shall be held by not more than two Persons in three Owner Participants at any one time; provided that for the aggregatepurpose of calculating the number of Owner Participants under this paragraph (j), except if such transfer occurs after the occurrence and during the continuance any Owner Participants that are Affiliates of a Lease Event of Defaulteach other shall be considered to be one Owner Participant;
(hk) all reasonable costs and expenses of the parties hereto (including, without limitation, reasonable legal fees fees, costs and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring Owner Participant or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two PersonsTransferee;
(il) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the CodeERISA;
(jm) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(kn) unless a as long as no Lease Event of Default shall have has occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, Participant the sole asset of which is all or a portion of the Beneficial Interest, Interest to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in paragraph (b) of this Section 6.1(b), provided that the Lessee may waive this requirement in writing6.1;
(lo) the Transferee transferee (i) is a U.S. "United States Person, provided that " within the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons meaning of Section 7701(a)(30) of the Code or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of is acquiring such Beneficial Interest is effectively connected in connection with such trade or business; and
(mp) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) abovecontained herein. Upon any such transfer transfer, (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(16.1(k) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. Any transfer or assignment of the Beneficial Interest in violation of this Section 6.1 shall be of no effect as between the parties to this Agreement. Subject to the rights of the Lessee pursuant to subsection 6.1(n), the provisions of this Section 6.1 shall not be construed to restrict the Owner Participant from consolidating with or merging into any other corporation or restricting another corporation from merging into or consolidating with the Owner Participant. No Transferee consent of the Lessee otherwise required hereunder shall be required if any Lease Event of Default shall have occurred and be continuing. Notwithstanding any transfer, the transferor Owner Participant shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges all benefits accrued and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest all rights vested prior to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees transfer, including, without limitation, rights to provide notice to the Rating Agency of indemnification under any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner ParticipantOperative Agreements.
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage encumber or otherwise transfer all or any part of the its Beneficial Interest (collectivelyand further agrees that the obligations under the Owner Participant Guaranty shall not be transferred, for purposes of this Section 6.1, a "transfer") in each case prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):Facility Lease, unless:
(a) the The Person to whom such transfer is to be made (a "Transferee") is not bankrupt subject at the time of the transfer to an Insolvency Proceeding and is an "affiliated company" or insolvent anda "qualified investor" or any other Person agreeable to each Note Purchaser and the Lessee as evidenced by their respective prior written consents delivered to the Owner Participant or Owner Participant Guarantor, as applicable. The term "affiliated company" shall mean any company (the "Parent") owning, directly or indirectly, not less than 80% of the Voting Stock of the Owner Participant or the Owner Participant Guarantor, any company (the "Holding Company") owning, directly or indirectly, not less than 80% of the Voting Stock of the Parent, and any company not less than 80% of the Voting Stock of which is owned, directly or indirectly, by the Holding Company, the Parent or such Owner Participant or Owner Participant Guarantor or any entity with which such Owner Participant or Owner Participant Guarantor merges or consolidates or which acquires substantially all of its assets. The term "qualified investor" means any Person existing under the laws of the United States of America or any jurisdiction thereof which is an institutional investor, which, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in under clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or ), (ii), the Owner Participant shall remain liable for all (vi), (vii) or (viii) of its obligations under this Agreement and the other Operative Agreements;
(bSection 15(a) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee Facility Lease or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing;
, is not a Disqualified Assignee (c) each of as defined below), and which (in the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address case of any proposed Transferee banking institution or insurance company) has capital, surplus and such additional information as shall be reasonably necessary to determine whether undivided profits (or the proposed transfer satisfies equivalent) of at least U.S.$50,000,000 or (in the requirements case of this Section 6.1;
(dany other transferee) has a net worth of at least U.S.$50,000,000; provided that, such Transferee enters into an agreement (i) in may have a capital, surplus and undivided profits or net worth, as the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each case may be, of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake less than U.S.$50,000,000 if all of the obligations capital stock and liabilities other Securities of the transferring Owner Participant contained in, this Agreement such Transferee are owned by a Person that would constitute a permitted transferee hereunder and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing)Person guarantees, the Indenture Trustee and the Policy Provider)or, confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to where the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of Guarantor remains the same Person as before such proposed transfer from an Owner Participant.transfer, such
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. (a) The Owner Participant covenants and agrees that it shall not, directly or indirectly, sell, convey, not during the Network Lease Term assign, pledgeconvey or transfer any of its right, mortgage title or otherwise transfer all or any part of interest in the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's prior written consent of TVA and, so long as any Equipment Notes are outstandingthe Lien of the Lease Indenture has not been terminated or discharged, without the Indenture Trustee's prior written consent; provided that no consent of the Lease Indenture Trustee (such consent shall not to be required if the following conditions are satisfied (it being understood unreasonably withheld); provided, however, that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) Owner Participant may assign, convey or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, its interest in the case of a bank or lending institution, combined capital and surplus at the time of Beneficial Interest in whole without such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant consent to a guaranty in form Person (the “Transferee”) which shall assume the duties and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) Documents pursuant to an Affiliate Assignment and Assumption Agreement substantially in the form of Exhibit D hereto, if each of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses following conditions shall have been satisfied:
(i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement TVA and the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing;
(c) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (and, so long as no the Lease Event of Default Debt is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing)outstanding, the Lease Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, shall have received an opinion of counsel, which opinion and counsel are reasonably satisfactory to TVA, and, so long as the Lease Debt is outstanding, the Lease Indenture Trustee and the Policy ProviderPass Through Trustee, to the terms effect that any regulatory approvals and notifications required in connection with such transfer or necessary to assume the Owner Participant’s obligations under the Operative Documents prior to the end of the Operative Agreements Network Lease Term shall not be alteredhave been obtained;
(gii) after giving effect to such transfer, the Beneficial Interest Transferee shall be held by not more than two Persons in a “United States person” within the aggregate, except if such transfer occurs after the occurrence and during the continuance meaning of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D7701(a)(30) of the Code;
(jiii) as a result the Transferee shall be either (A) an Affiliate of the Owner Participant which does not otherwise qualify under clause (B) below, provided that all of the payment and following such transfer, no Indenture Default attributable performance obligations of the Transferee with respect to the interest being transferred under the Operative Documents shall be guaranteed by the Owner Participant or any guarantor of the Owner Trustee shall have occurred Participant’s obligations under the Operative Documents pursuant to a guaranty substantially in the form of Exhibit E hereto, or (B) a Person that has, or the payment and be continuingperformance obligations of which with respect to the interest being transferred under the Operative Documents are guaranteed (pursuant to a guaranty substantially in the form of Exhibit E hereto) by a Person (the “OP Guarantor”) that has, a tangible net worth of at least $100 million calculated in accordance with GAAP;
(kiv) unless a Lease Event of Default shall have occurred and waived by TVA or such transfer is continuing, the transfer does not involve the sale to any of the stock of any Other Owner ParticipantParticipants, neither the sole asset of which Transferee nor the OP Guarantor is all or a portion of the Beneficial Interest, toCompetitor of, or the merger of any such Owner Participant with or intoan adverse party in material litigation with, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writingTVA;
(lv) the Transferee (i) is a U.S. Person, provided that Rating Agencies shall have received an opinion of counsel with respect to the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N substantially to the effect of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and nonconsolidation opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency Agencies on the Closing Date pursuant to Section 4(m), or if as a consequence of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of a change in bankruptcy law such proposed transfer from an Owner Participant.opinion cannot be given:
Appears in 1 contract
Samples: Participation Agreement (Tennessee Valley Authority)
Restrictions on Transfer of Beneficial Interest. The Owner Participant covenants and agrees that it shall not, directly or indirectly, sell, convey, not during the Facility Lease Term assign, pledgeconvey or transfer any of its right, mortgage title or otherwise interest in the Beneficial Interest without the prior written consent of Midwest and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that the Owner Participant may assign, convey or transfer all or any part of its interest in the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form Person (the “Transferee”) which shall assume the duties and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by Documents with respect to the interest being transferred pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit J hereto, if each of the following conditions shall have been satisfied:
(a) Midwest, NRG, the Owner Trustee and, so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee shall have received an opinion of counsel, which opinion and counsel are reasonably satisfactory to each recipient thereof, to the effect that such Affiliate as Assignment and Assumption Agreement is a legal, valid and binding obligation of, and is enforceable against, each party thereto, that all regulatory approvals required herein in connection with such transfer or (iii) an Affiliate of necessary to assume the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its ’s obligations under this Agreement the Operative Documents shall have been obtained and that the other Operative Agreementsproposed transfer of the Beneficial Interest will not require registration the Securities Act;
(b) neither the Transferee nor any shall be a “United States person” within the meaning of its Affiliates shall compete (directly or indirectlySection 7701(a)(30) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee Code;
(c) the Transferee or TILC; provided that this clause (b) shall not apply a guarantor of such Transferee meets the following criteria: (i) the Consolidated Tangible Net Assets of at least equal to any Transferee that is an Affiliate of the Owner Participant and $75 million calculated in accordance with GAAP, (ii) agrees to be bound by the terms of the Operative Documents pursuant to an Assumption and Assignment Agreement substantially in the event that a form of Exhibit J hereto, and (iii) so long as no Lease Event of Default shall have occurred and be continuing, such Transferee is not a Competitor of, or in material litigation with, Midwest or any Affiliate of Midwest, unless waived by Midwest;
(cd) each the transferring Owner Participant shall pay, without any right of indemnification from Midwest or any other Person, all reasonable documented out-of-pocket costs, fees and expenses incurred in connection with any such transfer by (i) the Indenture Trusteeother Lease Financing Parties, except Midwest and NRG, and (ii) Midwest and NRG, so long as no Lease Event of Default shall have occurred and be continuing; and
(e) following such transfer, there shall be not more than two Owner Participants with interests (Undivided Interests or beneficial trust interests) in the Facility. For purposes of Section 10.1(c), a “Competitor” of Midwest shall be an entity (other than an entity which on the Plan Effective Date is the Other Owner Participant or an Affiliate thereof) which, or an Affiliate of which, is significantly involved as a seller or trader of capacity or energy in the electricity market; provided that, the foregoing restriction shall not apply in the case of a Transferee that is an Affiliate of such a seller or trader so long as (i) such Transferee is an entity involved in making passive investments such as the Owner Participant’s contemplated investment in this transaction, (ii) such Transferee has in place procedures which shall be reasonably acceptable to Midwest to prevent such Affiliate that is a seller or trader of capacity from acquiring confidential information relating to such passive investments and agrees in writing with Midwest to maintain and abide by such procedures, and (iii) neither such Transferee nor any Affiliate thereof is an entity that is (x) actively involved in the generation of electricity in PJM Interconnection or Midcontinent Independent System Operator, Inc, or any successor thereto, or (y) on the List of Competitors, attached hereto as Exhibit K, which may, from time to time, but no more often than once per year, be modified by Midwest, and shall contain a list of up to six entities (including Affiliates) which Midwest reasonably believes in its good faith judgment are Competitors of Midwest. Notwithstanding the foregoing, the restrictions set forth above in Sections 10.1(a) or (c)(1) and (c)(3) shall not inure to the benefit of Midwest if such transfer is in connection with the exercise of remedies during a Lease Event of Default.
(f) Neither Midwest nor NRG shall be responsible for any adverse tax consequence to the Owner Lessor or the Owner Participant resulting from any transfer pursuant to this Section 10.1 and the Pricing Assumptions (as set forth on Schedule 10.1(c) to the Original Participation Agreement) shall not be changed as a result of any such transfer except if such transfer is in connection with the exercise of remedies during a Lease Event of Default.
(g) The Owner Participant shall give the Owner Lessor, the Owner Trustee, the Lessee Lease Indenture Trustee, the Pass Through Trustee, NRG and the Policy Provider shall have received 10 days Midwest thirty (30) days’ prior written notice of such transfer, or ten (10) days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;10.1. If requested by the Owner Participant, the Lease Indenture Trustee or any Pass Through Trustee, Midwest shall acknowledge qualifying transfers.
(dh) Upon any such transfer in compliance with this Section 10.1, (i) such Transferee enters into an agreement (i) in shall, to the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each extent of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected Beneficial Interest conveyed to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (iix) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "“Owner Participant" ” for all purposes, and shall (y) enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under the Assignment and Assumption Agreement, the Owner Participant Guaranty and each other Operative Agreement Document to which the such Owner Participant is a party, and, except as the context otherwise requires, and each reference in this Agreement Agreement, the Assignment and Assumption Agreement, the Owner Participant Guaranty and each other Operative Agreement Document to the "“Owner Participant" ” shall thereafter be deemed to include such Transferee for all purposes Transferee, to the extent of the interest transferredBeneficial Interest conveyed to the Transferee, for all purposes and (ii) the transferortransferor Owner Participant and the Guarantor, except to the extent provided in Section 6.1(1) hereof and except in the case if any, of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, such transferor Owner Participant’s obligations shall be released from all obligations hereunder and under each other Operative Agreement Document to which such transferor or Guarantor is a party or by which such transferor Owner Participant or Guarantor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, furtherhowever, that in no event shall any such transfer or assignment waive or release the transferor or its Guarantor from any liability on account of any breach existing immediately prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection occurring simultaneously with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participanttransfer.
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. (a) The Owner Participant covenants and agrees that it shall not, directly or indirectly, sell, convey, not during the Facility Lease Term assign, pledgeconvey or transfer any of its right, mortgage title or otherwise interest in the Beneficial Interest without the prior written consent of Midwest and, so long as the Lessor Notes are outstanding, without the prior written consent of the Holder Representative; PROVIDED, HOWEVER, that the Owner Participant may assign, convey or transfer all or any part of its interest in the Beneficial Interest without such consent to a Person (collectively, for purposes of this Section 6.1, a the "transferTRANSFEREE") prior to which shall assume the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital duties and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by Documents with respect to the interest being transferred pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit RR hereto, if each of the following conditions shall have been satisfied:
(i) Midwest, the Owner Trustee and, so long as the Lessor Notes are outstanding, the Holder Representative shall have received an opinion of counsel, which opinion and counsel are reasonably satisfactory to each recipient thereof, to the effect that such Affiliate as Assignment and Assumption Agreement is a legal, valid and binding obligation of, and is enforceable against, each party thereto, that all regulatory approvals required herein in connection with such transfer or necessary to assume the Owner Participant's obligations under the Operative Documents shall have been obtained and that the proposed transfer of the Beneficial Interest will not require registration the Securities Act;
(ii) the Transferee shall be a "United States person" within the meaning of Section 7701 (a)(30) of the Code;
(iii) an Affiliate the Transferee or a guarantor of such Transferee meets the following criteria: (1) the Consolidated Tangible Net Assets of at least equal to $75 million calculated in accordance with GAAP, (2) agrees to be bound by the terms of the Owner Participant; provided that Operative Documents pursuant to an Assumption and Assignment Agreement substantially in the event form of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii)Exhibit RR hereto, the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and (ii3) in the event that a so long as no Lease Event of Default shall have occurred and be continuing, such Transferee is not a Competitor of, or in material litigation with, Midwest or any Affiliate of Midwest, unless waived by Midwest;
(civ) each the transferring Owner Participant shall pay, without any right of the Indenture Trusteeindemnification from Midwest or any other Person, the Owner Trusteeall reasonable documented out-of-pocket costs, the Lessee fees and the Policy Provider shall have received 10 days prior written notice of expenses incurred in connection with any such transfer specifying by (x) the name other Lease Financing Parties, except Midwest, and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(dy) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (Midwest, so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(mv) following such transfer, there shall be not more than four Owner Participants with interests (Undivided Interests or beneficial trust interests) in the Owner Participant shall deliver to Facility.
(b) For purposes of the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses preceding clause (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee a "COMPETITOR" of Midwest shall be deemed an entity which, or an Affiliate of which, is significantly involved as a seller or trader of capacity or energy in the "Owner Participant" for all purposeselectric market; PROVIDED that, and the foregoing restriction shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except not apply in the case of a transfer Transferee that is an Affiliate of such a seller or trader so long as (i) such Transferee is an entity involved in making passive investments such as the Owner Participant's contemplated investment in this transaction, (ii) such Transferee has in place procedures which shall be reasonably acceptable to Midwest to prevent such Affiliate that is a seller or trader of capacity from acquiring confidential information relating to such passive investments and agrees in writing with Midwest to maintain and abide by such procedures, and (iii) neither such Transferee described nor any Affiliate thereof is an entity that is (x) actively involved in the proviso generation of electricity in Mid-American Interconnected Network and/or the East Central Reliability Council or any successor thereto, or (y) on the List of Competitors, attached hereto as Exhibit SS, which may, from time to Section 6.1(a)(iiitime, but no more often than once per year, be modified by Midwest, and shall contain a list of up to six entities (including Affiliates) hereofwhich Midwest reasonably believes in its good faith judgment are Competitors of Midwest. Notwithstanding the foregoing, the restrictions set forth in clause (i) or (iii) (1) and (iii) (3) of SECTION 12.1(a) above shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely not inure to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any benefit of Midwest if such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered is in connection with such transfer in accordance with the terms exercise of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed remedies during a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. (a) The Owner Participant covenants and agrees that that, except as otherwise permitted by Section 12, it shall not, not directly or indirectly, sell, convey, indirectly during the Term of the Operating Agreements assign, pledgeconvey or transfer any of its right, mortgage title or otherwise transfer all or any part of interest in the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's prior written consent, so long as no Event of Default has occurred and is continuing, of Old Dominion and, so long as any Equipment Notes the Loans are outstanding, of each Lender; PROVIDED, HOWEVER, that the Indenture Trustee's prior written consent; provided that no Owner Participant may assign, convey or transfer all of its interest in the Beneficial Interest without such consent shall be required if to a Person (the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in which shall assume the case of a bank or lending institution, combined capital duties and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or Documents pursuant to an assumption agreement substantially in the form of Exhibit P hereto, which Transferee shall be either (iiii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) Chrysler Capital Corporation which does not otherwise qualify under clauses clause (iii) below, provided that all of the payment and performance obligations of the Transferee under the Operative Documents shall be guaranteed by Chrysler Capital Corporation pursuant to a guaranty substantially in the form of Exhibit Q hereto or (ii)) a Person which meets, or the payment and performance obligations of which under the Operative Documents are guaranteed (pursuant to a guaranty substantially in the form of Exhibit Q hereto) by a Person (Chrysler Capital Corporation or such other guarantor, the "Guarantor") which meets, the following criteria: (A) the tangible net worth of the Transferee or Guarantor and any general partner thereof, if any, is at least equal to $100 million; (B) each of the Transferee and any Guarantor is a financial institution, corporation or business trust or a partnership all of whose partners are financial institutions, corporations or business trusts; (C) the Transferee is a "United States person" within the meaning of 7701(a)(30) of the Code; (D) so long as no Event of Default has occurred and is continuing and except from and after the date 18 months preceding the end of the Term of the Operating Equipment Agreement if Old Dominion has not elected to exercise the Purchase Option, such Transferee is not a direct competitor of Old Dominion. Notwithstanding the foregoing, the Owner Participant covenants and agrees for the benefit of Virginia Power that it shall remain liable for all not directly or indirectly during the Term of the Operating Leases assign, convey or transfer any of its obligations under this Agreement and right, title or interest in the other Operative Agreements;Beneficial Interest to a direct competitor (or an Affiliate thereof) of Virginia Power without the prior written consent of Virginia Power.
(b) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the The Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing;
(c) each of the Indenture Trusteegive Old Dominion, the Owner Trustee, the Lessee Virginia Power and the Policy Provider shall have received 10 Agent 30 days prior written notice of such transfer, or 10 days in the case of a transfer to an Affiliate of Chrysler Capital Corporation specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;5.
1. All reasonable fees, expenses and charges of the Agent and Old Dominion (d) such Transferee enters into an agreement (iincluding reasonable attorneys' fees) in the form attached hereto as Exhibit C connection with any such transfer (or (ii) otherwise in form and substance reasonably satisfactory to each proposed transfer), including any of the Lessee (so long foregoing relating to any amendments to the Operative Documents required in connection therewith, shall be paid by the Owner Participant, without any right of indemnification from Old Dominion or any other Person; PROVIDED, HOWEVER, that the Owner Participant shall have no obligation to pay such fees, expenses or charges as no Lease a result of any transfer while an Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee case Old Dominion shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;costs.
(ic) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer in compliance with this Section 5.1, (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under the Assumption Agreement, the Guaranty and each other Operative Agreement Document to which the such Owner Participant is a party, and, except as the context otherwise requires, and each reference in this Agreement Agreement, the Assumption Agreement, the Guaranty and each other Operative Agreement Document to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferortransferor Owner Participant and the Guarantor, except to the extent provided in Section 6.1(1) hereof and except in the case if any, of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, such transferor Owner Participant's obligations shall be released from all obligations hereunder and under each other Operative Agreement Document to which such transferor or Guarantor is a party or by which such transferor Owner Participant or Guarantor is bound solely to the extent such obligations are expressly assumed by a Transferee; and providedPROVIDED, furtherHOWEVER, that in no event shall any such transfer or assignment waive or release the transferor or its Guarantor from any liability on account of any breach existing immediately prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection occurring simultaneously with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participanttransfer.
Appears in 1 contract
Samples: Participation Agreement (Old Dominion Electric Cooperative)
Restrictions on Transfer of Beneficial Interest. The Owner ----------------------------------------------- Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consentconsent (which consent shall not be unreasonably withheld); provided provided, however, that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):satisfied:
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an any Affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such Affiliate pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete (directly be a direct or indirectly) indirect competitor (other than as a passive investor or loan participant in the financing of equipment or facilities used in full service railcar leasing) with of the Lessee or TILC GATC in the business of leasing rail cars under full service operating leases; provided, that no Transferee or Affiliate thereof shall be deemed to (unless such non-competition requirement has been waived i) be engaged in writing by the Lessee and TILC) in any respect material to the full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with Lessee's or GATC's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the Lessee foregoing) of any of such Person's interest in any equipment or TILC; provided that this clause (b) shall not apply (i) facilities directly or indirectly owned, leased or otherwise controlled pursuant to any Transferee that such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is an returned to or repossessed by or on behalf of the Owner Participant or any Affiliate of the Owner Participant and (ii) from a lessee or borrower in connection with a lease financing or lender transaction entered into by the event that Owner Participant or such Affiliate as a Lease Event of Default shall have occurred and be continuingpassive lessor, investor or lender;
(c) each of the Indenture Trustee, the Owner Trustee, Trustee and the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise agreements in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), and not reasonably objected to by the Owner Trustee or the Indenture Trustee and which may be internal counsel of the Policy ProviderTransferee), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the TransfereeTransferee (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact), (ii) that each agreement referred to in Section 6.1(dsubparagraph (d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable laws and regulations including any registration requirements of federal securities laws and securities laws of the Transferee's domiciledomicile and other jurisdictions reasonably identified by the Lessee, the Owner Trustee or the Indenture Trustee as potentially applicable to the transfer, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and not reasonably objected to by the Owner Trustee or the Indenture Trustee;
(f) such transfer complies in all respects with and does not violate any applicable provisions of the federal securities laws and the securities law of any applicable state;
(g) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy ProviderPass Through Trustee, the terms of the Operative Agreements shall not be altered;
(gh) [in the case of a transfer by the original Owner Participant, the original Owner Participant shall have delivered on a timely basis the certificates required pursuant to Section [_______];]
(i) after giving effect to such transfer, no Owner Participant shall hold less than 30% of the Beneficial Interest, and the Beneficial Interest shall be held by not more than two Persons in three Owner Participants at any one time; provided that for the aggregatepurpose of calculating the number of Owner Participants under this paragraph (i), except if such transfer occurs after the occurrence and during the continuance any Owner Participants that are Affiliates of a Lease Event of Defaulteach other shall be considered to be one Owner Participant;
(hj) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(ik) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(jl) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(km) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, Interest to, or the merger of any such Owner Participant with or into, any Person which who is a competitor of the Lessee or TILC GATC as described in paragraph (b) of this Section 6.1(b), provided that the Lessee may waive this requirement in writing6.1;
(ln) the Transferee (i) is a U.S. "United States Person, provided that " within the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons meaning of Section 7701(a)(30) of the Code or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of is acquiring such Beneficial Interest is effectively connected in connection with such trade or business;
(o) the transfer does not increase the Lessee's indemnification obligations under Section 7.1 or 7.2; and
(mp) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) abovecontained herein. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(16.1(j) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, -------- ------- that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee Subject to subsections 6.1(m) and (n), the provisions of this Section 6.1 shall not be construed to restrict the Owner Participant from consolidating with or merging into any other corporation or restricting another corporation from merging into or consolidating with the Owner Participant. Notwithstanding any transfer, the transferor Owner Participant shall be entitled to reimbursement by the Lessee all benefits accrued and all rights vested prior to such transfer, including, without limitation, rights to indemnification under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner ParticipantOperative Agreements.
Appears in 1 contract
Samples: Participation Agreement (General American Railcar Corp Ii)
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the its Beneficial Interest (collectivelyInterest, for purposes of this except to Lessee in accordance with Section 6.1, a "transfer"23(c) prior to the expiration or earlier termination of the Lease Term without the Lessee's and(to which transfer Indenture Trustee hereby consents), so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):unless:
(a) the Person to whom such transfer is to be made (a "“Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) a Person that is an institutional investor organized as a corporation, limited liability company, partnership or corporate investor other legal entity under the laws of the United States or any state or territory thereof or the District of Columbia with tangible net worth or, in the case of a bank or lending institution, combined capital and or surplus at the time of such transfer, transfer of at least US $75,000,000, all of the foregoing determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an Affiliate any United States subsidiary or United States affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such subsidiary or affiliate pursuant to a guaranty in form and substance an instrument or instruments reasonably satisfactory to the Lessee the obligations of the Lessee, Owner Participant under the Operative Agreements assumed by such Affiliate as required herein Trustee and Indenture Trustee or (iii) an Affiliate any United States subsidiary or United States affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the transferring Owner Participant shall remain if the transferring Owner Participant remains liable for all obligations of its obligations Owner Participant under this Agreement and each of the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete be (i) directly or indirectly) (other than as a passive investor or loan participant involved in the financing transportation business (it being understood that operating lessors and passive equity and debt investors (including lessors) in railroad rolling stock and facilities are not directly involved in the transportation business), (ii) a competitor of equipment or facilities used Lessee in railcar leasingLessee’s primary business, (iii) with at the time of the proposed transfer, a substantial investor in Lessee or TILC any Affiliate of Lessee attempting a merger, acquisition or other takeover of Lessee or any Affiliate of Lessee which merger, acquisition or other takeover shall not have been approved by the Board of Directors of Lessee or such Affiliate or otherwise be perceived by Lessee or such Affiliate to be hostile to the management of Lessee or such Affiliate, (unless such noniv) an adverse plaintiff or defendant in any then-competition requirement existing litigation or any then-existing third-party arbitration involving Lessee or an Affiliate of Lessee, or (v) the potential plaintiff in any litigation which has been waived threatened, in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the writing, against Lessee or TILCan Affiliate of Lessee; provided that this clause (b) shall not apply (i) to any Transferee that is if a Specified Default or an Affiliate of the Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing, the requirements set forth in this subsection (b) above shall not apply to such transfer;
(c) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider Owner Trustee shall have received 30 days’ (10 days in the case of a transfer to an Affiliate) prior written notice of such transfer specifying the name and address of any proposed Transferee transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.16.1 and Section 8.01 of the Trust Agreement;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise agreements in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Lessee, Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) such transfer complies in all respects with and does not violate any applicable law, including any applicable Federal securities law and the securities law of any applicable state;
(f) an opinion of counsel of the Transferee (which counsel shall be either Txxxxx Xxxx & Priest LLP, internal counsel to the Transferee or another counsel reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the and Indenture Trustee and the Policy ProviderTrustee), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the TransfereeTransferee (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact), (ii) that each agreement referred to in Section 6.1(dsubparagraph (d) above is the legal, valid, binding and binding enforceable obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to the customary qualifications as to bankruptcy and equitable principles) and exceptions, (iii) compliance of the transfer with the registration provisions of applicable requirements of federal laws and regulations including Federal securities laws and securities laws of the Transferee's domicile’s domicile and other jurisdictions reasonably identified by Lessee as potentially applicable to the transfer, and (iv) other matters as Lessee or Indenture Trustee may reasonably request, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) Lessee, Indenture Trustee and the Indenture Owner Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event each of Default is continuing) and the Indenture Trusteethem;
(fg) except as specifically consented to in writing by each of the Lessee, the Owner Lessee and Indenture Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable fees, expenses and charges of the parties hereto (including, including without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds an amount which constitute constitutes assets of an employee benefit plan subject to Title I (other than a government plan exempt from the coverage of ERISA or Section 4975 of the Code ERISA) or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Codetransaction;
(j) such transfer shall be of all, but not less than all, of the entire Beneficial Interest of Owner Participant;
(k) such transfer shall not occur prior to the Closing Date;
(l) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver an Officer’s Certificate to the Lessee an Officer's Certificate parties hereto certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) abovecontained herein. Upon any such transfer transfer, (i) except as the context otherwise requires, such Transferee shall be deemed the "“Owner Participant" ” for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the such Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "“Owner Participant" ” shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, transferred and (ii) the transferor, except to the extent as provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii6.1(h) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing immediately prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 Any transfer or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer assignment of the Beneficial Interest to such Transferee a copy in violation of the agreement this Section 6.1 shall be void and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participanteffect.
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and or (ii) in the event that a Lease Event of Default shall have occurred and be continuing;
(c) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(bSection
6.1 (b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.or
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. The Owner Participant covenants and agrees that it shall not, directly or indirectly, sell, convey, not during the Facility Lease Term assign, pledgeconvey or transfer any of its right, mortgage title or otherwise interest in the Beneficial Interest without the prior written consent of Midwest and, so long as the Lien of the Lease Indenture has not been terminated or discharged, without the prior written consent of the Lease Indenture Trustee and the Pass Through Trustee; provided, however, that the Owner Participant may assign, convey or transfer all or any part of its interest in the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form Person (the “Transferee”) which shall assume the duties and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by Documents with respect to the interest being transferred pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit J hereto, if each of the following conditions shall have been satisfied:
(a) Midwest, NRG, the Owner Trustee and, so long as the Lien of the Lease Indenture has not been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustee shall have received an opinion of counsel, which opinion and counsel are reasonably satisfactory to each recipient thereof, to the effect that such Affiliate as Assignment and Assumption Agreement is a legal, valid and binding obligation of, and is enforceable against, each party thereto, that all regulatory approvals required herein in connection with such transfer or (iii) an Affiliate of necessary to assume the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its ’s obligations under this Agreement the Operative Documents shall have been obtained and that the other Operative Agreementsproposed transfer of the Beneficial Interest will not require registration the Securities Act;
(b) neither the Transferee nor any shall be a “United States person” within the meaning of its Affiliates shall compete (directly or indirectlySection 7701(a)(30) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee Code;
(c) the Transferee or TILC; provided that this clause (b) shall not apply a guarantor of such Transferee meets the following criteria: (i) the Consolidated Tangible Net Assets of at least equal to any Transferee that is an Affiliate of the Owner Participant and $75 million calculated in accordance with GAAP, (ii) agrees to be bound by the terms of the Operative Documents pursuant to an Assumption and Assignment Agreement substantially in the event that a form of Exhibit J hereto, and (iii) so long as no Lease Event of Default shall have occurred and be continuing, such Transferee is not a Competitor of, or in material litigation with, Midwest or any Affiliate of Midwest, unless waived by Midwest;
(cd) each the transferring Owner Participant shall pay, without any right of indemnification from Midwest or any other Person, all reasonable documented out-of-pocket costs, fees and expenses incurred in connection with any such transfer by (i) the Indenture Trusteeother Lease Financing Parties, except Midwest and NRG, and (ii) Midwest and NRG, so long as no Lease Event of Default shall have occurred and be continuing; and
(e) following such transfer, there shall be not more than two Owner Participants with interests (Undivided Interests or beneficial trust interests) in the Facility. For purposes of Section 10.1(c), a “Competitor” of Midwest shall be an entity (other than an entity which on the Plan Effective Date is the Other Owner Participant or an Affiliate thereof) which, or an Affiliate of which, is significantly involved as a seller or trader of capacity or energy in the electricity market; provided that, the foregoing restriction shall not apply in the case of a Transferee that is an Affiliate of such a seller or trader so long as (i) such Transferee is an entity involved in making passive investments such as the Owner Participant’s contemplated investment in this transaction, (ii) such Transferee has in place procedures which shall be reasonably acceptable to Midwest to prevent such Affiliate that is a seller or trader of capacity from acquiring confidential information relating to such passive investments and agrees in writing with Midwest to maintain and abide by such procedures, and (iii) neither such Transferee nor any Affiliate thereof is an entity that is (x) actively involved in the generation of electricity in PJM Interconnection or Midcontinent Independent System Operator, Inc, or any successor thereto, or (y) on the List of Competitors, attached hereto as Exhibit K, which may, from time to time, but no more often than once per year, be modified by Midwest, and shall contain a list of up to six entities (including Affiliates) which Midwest reasonably believes in its good faith judgment are Competitors of Midwest. Notwithstanding the foregoing, the restrictions set forth above in Sections 10.1(a) or (c)(1) and (c)(3) shall not inure to the benefit of Midwest if such transfer is in connection with the exercise of remedies during a Lease Event of Default.
(f) Neither Midwest nor NRG shall be responsible for any adverse tax consequence to the Owner Lessor or the Owner Participant resulting from any transfer pursuant to this Section 10.1 and the Pricing Assumptions (as set forth on Schedule 10.1(c) to the Original Participation Agreement) shall not be changed as a result of any such transfer except if such transfer is in connection with the exercise of remedies during a Lease Event of Default.
(g) The Owner Participant shall give the Owner Lessor, the Owner Trustee, the Lessee Lease Indenture Trustee, the Pass Through Trustee, NRG and the Policy Provider shall have received 10 days Midwest thirty (30) days’ prior written notice of such transfer, or ten (10) days in the case of a transfer to an Affiliate of the Owner Participant, specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and 10.1. If requested by the Owner Trustee and not reasonably objected to by Participant, the Lease Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the or any Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements Midwest shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;acknowledge qualifying transfers.
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if Upon any such transfer occurs after the occurrence and during the continuance of a Lease Event of Defaultin compliance with this Section 10.1, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicableTransferee shall, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement Beneficial Interest conveyed to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.,
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. The ----------------------------------------------- Owner Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consentconsent (which consent shall not be unreasonably withheld); provided provided, however, that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):satisfied:
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an any Affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such Affiliate pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) so long as no Lease Event of Default has occurred and is continuing, neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in full service railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) Parent in any respect material to the business of Lessee's Parent of leasing rail cars under full service operating leases; provided, that no Transferee or Affiliate thereof shall be deemed to (i) be engaged in full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and (ii) hold (directly or indirectly) any material interest in any business that is competitive with Lessee's or Lessee Parent's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the foregoing) of any of such Person's interest in any equipment or facilities directly or indirectly owned, leased or otherwise controlled pursuant to any such Person's passive investment or loan participation in the event that financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is returned to or repossessed by or on behalf of such Person from a Lease Event of Default shall have occurred and be continuing;lessee or borrower in connection with a lease financing or lender transaction entered into by such Person as a passive lessor, investor or lender; [Participation Agreement (GARC II 98-A)]
(c) each of the Indenture Trustee, the Owner Trustee, Trustee and the Lessee and the Policy Provider shall have received 10 days (or, if a Lease Event of Default shall have occurred and is continuing and the proposed Transferee or any of its Affiliates would not, but for the occurrence of such Lease Event of Default, have satisfied the requirements set forth in subparagraph (b) above or (l) below, fifteen (15) Business Days) prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing)Lessee, the Owner Trustee and the Indenture Trustee and which may be internal counsel of the Policy ProviderTransferee), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the TransfereeTransferee (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact), (ii) that each agreement referred to in Section 6.1(dsubparagraph (d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) Lessee, the Owner Trustee and the Indenture Trustee;
(f) such transfer complies in all respects with and does not violate any applicable provisions of the federal securities laws and the securities law of any applicable state;
(g) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy ProviderPass Through Trustee, the terms of the Operative Agreements shall not be altered;
(gh) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons [two] Owner Participants and the total number of owner participants (including the Owner Participants) holding beneficial interests in the aggregateCompany Fleet shall not [Participation Agreement (GARC II 98-A)] exceed [five] owner participants (including the Owner Participants); provided that for the purpose of calculating the number of Owner Participants under this paragraph (h), except if such transfer occurs after the occurrence and during the continuance any Owner Participants that are Affiliates of a Lease Event of Defaulteach other shall be considered to be one Owner Participant;
(hi) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(ij) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(jk) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(kl) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which who is a competitor of the Lessee or TILC Parent as described in paragraph (b) of this Section 6.1(b), provided that the Lessee may waive this requirement in writing6.1;
(lm) the Transferee (i) is a U.S. "United States Person, provided that " within the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons meaning of Section 7701(a)(30) of the Code or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of is acquiring such Beneficial Interest is effectively connected in connection with such trade or business; and
(mn) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) abovecontained herein. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(16.1(i) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees [Participation Agreement (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.GARC II 98-A)]
Appears in 1 contract
Samples: Participation Agreement (General American Railcar Corp Ii)
Restrictions on Transfer of Beneficial Interest. The Owner ----------------------------------------------- Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the its Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's andconsent (which consent shall not be unreasonably withheld); provided, so long as any Equipment Notes are outstandinghowever, the Indenture Trustee's prior written consent; provided that no such consent shall be -------- ------- required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):satisfied:
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, US$75,000,000 determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an any Affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such Affiliate pursuant to a guaranty in form and substance an instrument or instruments reasonably satisfactory to the Lessee the obligations of Lessee, the Owner Participant under Trustee and the Operative Agreements assumed by such Affiliate as required herein Indenture Trustee or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to -------- clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(b) so long as no Lease Event of Default has occurred and is continuing, neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) be a direct competitor (other than as a passive investor or loan participant in the financing of equipment or facilities used in full service railcar leasing) with of the Lessee in the business of leasing rail cars under full service operating leases; provided, -------- that no Transferee or TILC Affiliate thereof shall be deemed to (unless such non-competition requirement has been waived i) be engaged in writing by the Lessee and TILC) in any respect material to the full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with Lessee's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the Lessee foregoing), of any of such Person's interest in any equipment or TILC; provided that this clause (b) shall not apply (i) facilities directly or indirectly owned, leased or otherwise controlled pursuant to any Transferee that such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is an returned to or repossessed by or on behalf of the Owner Participant or any Affiliate of the Owner Participant and (ii) from a lessee or borrower in connection with a lease financing or lender transaction entered into by the event that Owner Participant or such Affiliate as a Lease Event of Default shall have occurred and be continuingpassive lessor, investor or lender;
(c) each of the Indenture Trustee, the Owner Trustee, Trustee and the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;
(d) [RESERVED];
(e) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise agreements in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and Lessee, the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the its Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's which consent shall not be required for any waiver of unreasonably withheld) and absent indemnifying the conditions set forth in clauses (b) or (k) below):Lessee to its reasonable satisfaction unless:
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, transfer of at least $75,000,000, US$75,000,000 determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an any Affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such Affiliate pursuant to a guaranty an instrument or instruments identical to Exhibit B hereto in form and substance all material respects or otherwise reasonably satisfactory to the Lessee the obligations of Lessee, the Owner Participant under Trustee and the Operative Agreements assumed by such Affiliate as required herein Indenture Trustee or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative AgreementsAgreements and any guarantee given pursuant to clause (ii) shall remain in full force and effect;
(b) the Owner Participant is not in default under the Lease;
(c) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) be a direct competitor (other than as a passive investor or loan participant in the financing of equipment or facilities used in full service railcar leasing) with of the Lessee in the business of leasing rail cars under full service operating leases; provided, that no Transferee or TILC Affiliate thereof shall be deemed to (unless such non-competition requirement has been waived i) be engaged in writing by the Lessee and TILC) in any respect material to the full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with the Lessee's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the Lessee foregoing) of any of such Person's interest in any equipment or TILC; provided that this clause (b) shall not apply (i) facilities directly or indirectly owned, leased or otherwise controlled pursuant to any Transferee that such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is an returned to or repossessed by or on behalf of the Owner Participant or any Affiliate of the Owner Participant and (ii) from a lessee or borrower in connection with a lease financing or lender transaction entered into by the event that Owner Participant or such Affiliate as a Lease Event of Default shall have occurred and be continuingpassive lessor, investor or lender;
(cd) each of the Indenture Trustee, the Owner Trustee, Trustee and the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1; provided, however, that such 10 days prior written notice need not be given to the Indenture Trustee and the Lessee if such sale, conveyance, assignment, pledge, mortgage or other transfer is to an Affiliate of the Owner Participant;
(de) so long as any Interim Interest has become due and payable but has not been paid by, or reimbursed by, the Owner Participant, the Lessee shall have consented in writing to such transfer;
(f) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise agreements in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and Lessee, the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(eg) such transfer complies in all respects with and does not violate any applicable federal securities law and the securities law of any applicable state;
(h) an opinion of counsel of to the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), and the Indenture Trustee and which may be internal counsel of the Policy ProviderTransferee), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the TransfereeTransferee (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact), (ii) that each agreement referred to in Section 6.1(dsubparagraph (f) above is the legal, valid, binding and binding enforceable obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities material laws of the Transferee's domiciledomicile and other material laws applicable to the Transferee, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event each of Default is continuing) and the Indenture Trusteethem;
(fi) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, Lessee and the Indenture Trustee and the Policy ProviderTrustee, the terms of the Operative Agreements shall not be altered;
(gj) such transfer shall not result in an increase in the Lessee's obligations under Section 7.1 or 7.2 or under the Tax Indemnity Agreement;
(k) no Owner Participant shall hold less than 20% of the Beneficial Interest after giving effect to such transfer, transfer and the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Defaultfour Owner Participants;
(hl) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring Owner Participant or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two PersonsTransferee;
(im) such transfer either (i) does not involve the use of any funds an amount which constitute constitutes assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the CodeERISA;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the its Beneficial Interest (collectivelyInterest, for purposes of this except to Lessee in accordance with Section 6.1, a "transfer"23(c) prior to the expiration or earlier termination of the Lease Term without the Lessee's and(to which transfer Indenture Trustee hereby consents), so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):unless:
(a) the Person to whom such transfer is to be made (a "“Transferee"”) is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) a Person that is an institutional investor organized as a corporation, limited liability company, partnership or corporate investor other legal entity under the laws of the United States or any state or territory thereof or the District of Columbia with tangible net worth or, in the case of a bank or lending institution, combined capital and or surplus at the time of such transfer, transfer of at least US $75,000,000, all of the foregoing determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an Affiliate any United States subsidiary or United States affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such subsidiary or affiliate pursuant to a guaranty in form and substance an instrument or instruments reasonably satisfactory to the Lessee the obligations of the Lessee, Owner Participant under the Operative Agreements assumed by such Affiliate as required herein Trustee and Indenture Trustee or (iii) an Affiliate any United States subsidiary or United States affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the transferring Owner Participant shall remain if the transferring Owner Participant remains liable for all obligations of its Owner Participant under each of the Operative Agreements or OP Guarantor guarantees the obligations under this Agreement and the other Operative Agreementsof Transferee;
(b) neither the Transferee nor any of its Affiliates shall compete be (i) directly or indirectly) (other than as a passive investor or loan participant involved in the financing transportation business (it being understood that operating lessors and passive equity and debt investors (including lessors) in railroad rolling stock and facilities are not directly involved in the transportation business), (ii) a competitor of equipment or facilities used Lessee in railcar leasingLessee’s primary business, (iii) with at the time of the proposed transfer, a substantial investor in Lessee or TILC any Affiliate of Lessee which merger, acquisition or other takeover shall not have been approved by the Board of Directors of Lessee or such Affiliate or otherwise be perceived by Lessee or such Affiliate to be hostile to the management of Lessee or such Affiliate, (unless such noniv) an adverse plaintiff or defendant in any then-competition requirement existing litigation or any then-existing third-party arbitration involving Lessee or an Affiliate of Lessee, or (v) the potential plaintiff in any litigation which has been waived threatened, in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the writing, against Lessee or TILCan Affiliate of Lessee; provided that this clause (b) shall not apply (i) to any Transferee that is if a Specified Default or an Affiliate of the Owner Participant and (ii) in the event that a Lease Event of Default shall have occurred and be continuing, the requirements set forth in this subsection (b) above shall not apply to such transfer;
(c) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider Owner Trustee shall have received 30 days’ (10 days in the case of a transfer to an Affiliate) prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.16.1 and Section 8.01 of the Trust Agreement;
(d) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise agreements in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Lessee, Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.
Appears in 1 contract
Restrictions on Transfer of Beneficial Interest. The Owner Participant agrees that it shall not, directly or indirectly, not sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the its Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's which consent shall not be required for any waiver of unreasonably withheld) and absent indemnifying the conditions set forth in clauses (b) or (k) below):Lessee to its reasonable satisfaction unless:
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, transfer of at least $75,000,000, US$75,000,000 determined in accordance with generally accepted accounting principles, as of the date of such transfer, principles or (ii) an any Affiliate of an any such institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees the obligations so assumed by such Affiliate pursuant to a guaranty an instrument or instruments identical to Exhibit B hereto in form and substance all material respects or otherwise reasonably satisfactory to the Lessee the obligations of Lessee, the Owner Participant under Trustee and the Operative Agreements assumed by such Affiliate as required herein Indenture Trustee or (iii) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative AgreementsAgreements and any guarantee given pursuant to clause (ii) shall remain in full force and effect;
(b) the Owner Participant is not in default under the Lease;
(c) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) be a direct competitor (other than as a passive investor or loan participant in the financing of equipment or facilities used in full service railcar leasing) with of the Lessee in the business of leasing rail cars under full service operating leases; provided, that no Transferee or TILC Affiliate thereof shall be deemed to (unless such non-competition requirement has been waived i) be engaged in writing by the Lessee and TILC) in any respect material to the full service railcar leasing or (ii) hold (directly or indirectly) any material interest in any business that is competitive with the Lessee's full service railcar leasing business, solely by reason of any sale, lease or other disposition (or any actions in furtherance of any of the Lessee foregoing) of any of such Person's interest in any equipment or TILC; provided that this clause (b) shall not apply (i) facilities directly or indirectly owned, leased or otherwise controlled pursuant to any Transferee that such Person's passive investment or loan participation in the financing of any such equipment or facilities used in full service railcar leasing or any re-leasing or sale of any rail equipment which is an returned to or repossessed by or on behalf of the Owner Participant or any Affiliate of the Owner Participant and (ii) from a lessee or borrower in connection with a lease financing or lender transaction entered into by the event that Owner Participant or such Affiliate as a Lease Event of Default shall have occurred and be continuingpassive lessor, investor or lender;
(cd) each of the Indenture Trustee, the Owner Trustee, Bank and the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1; provided, however, that such 10 days prior written notice need not be given to the Indenture Trustee and the Lessee if such sale, conveyance, assignment, pledge, mortgage or other transfer is to an Affiliate of the Owner Participant;
(de) so long as any Interim Interest has become due and payable but has not been paid by, or reimbursed by, the Owner Participant, the Lessee shall have consented in writing to such transfer;
(f) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise agreements in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and Lessee, the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(eg) such transfer complies in all respects with and does not violate any applicable federal securities law and the securities law of any applicable state;
(h) an opinion of counsel of to the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing)Lessee, the Bank and the Indenture Trustee and which may be internal counsel of the Policy ProviderTransferee), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the TransfereeTransferee (with appropriate reliance on certificates of corporate officers or public officials as to matters of fact), (ii) that each agreement referred to in Section 6.1(dsubparagraph (f) above is the legal, valid, binding and binding enforceable obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities material laws of the Transferee's domiciledomicile and other material laws applicable to the Transferee, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event each of Default is continuing) and the Indenture Trusteethem;
(fi) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, Lessee and the Indenture Trustee and the Policy ProviderTrustee, the terms of the Operative Agreements shall not be altered;
(gj) such transfer shall not result in an increase in the Lessee's obligations under Section 7.1 or under the Tax Indemnity Agreement;
(k) no Owner Participant shall hold less than 20% of the Beneficial Interest after giving effect to such transfer, transfer and the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Defaultfour Owner Participants;
(hl) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring Owner Participant or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two PersonsTransferee;
(im) such transfer either (i) does not involve the use of any funds an amount which constitute constitutes assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the CodeERISA;
(jn) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(ko) unless a as long as no Lease Event of Default shall have has occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, Participant the sole asset of which is all or a portion of the Beneficial Interest, Interest to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in paragraph (c) of this Section 6.1(b), provided that the Lessee may waive this requirement in writing6.1;
(lp) the Transferee (i) is a U.S. "United States Person, provided that " within the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons meaning of Section 7701(a)(30) of the Code or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of is acquiring such Beneficial Interest is effectively connected in connection with such trade or business;
(q) the Owner Participant shall have made available its Commitment in respect of Units to be delivered on the Subsequent Closing Date; and
(mr) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) abovecontained herein. Upon any such transfer transfer, (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent as provided in Section 6.1(16.1(l) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing immediately prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. Any transfer or assignment of the Beneficial Interest in violation of this Section 6.1 shall be void and of no effect as between the parties to this Agreement. Subject to the rights of the Lessee pursuant to subsection 6.1(o), the provisions of this Section 6.1 shall not be construed to restrict the Owner Participant from consolidating with or merging into any other corporation or restricting another corporation from merging into or consolidating with the Owner Participant. No Transferee consent of the Lessee otherwise required hereunder shall be required if any Lease Event of Default shall have occurred and be continuing. Notwithstanding any transfer, the transferor Owner Participant shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges all benefits accrued and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest all rights vested prior to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees transfer, including, without limitation, rights to provide notice to the Rating Agency of indemnification under any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner ParticipantOperative Agreements.
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Restrictions on Transfer of Beneficial Interest. (a) The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (bii) or (kxi) below):
(ai) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (iI) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (iiII) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (iI) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iiiIII) an Affiliate of the Owner Participant; provided that in the event of a transfer pursuant to clause (iiiIII) which does not qualify under clauses (iI) or (iiII), the Owner Participant shall remain liable for all of its obligations under this Agreement and the other Operative Agreements;
(bii) neither the Transferee nor any of its Affiliates shall compete (directly or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (bii) shall not apply (iI) to any Transferee that is an Affiliate of the Owner Participant and (iiII) in the event that a Lease Event of Default shall have occurred and be continuing;
(ciii) each of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider shall have received 10 days prior written notice of such transfer specifying the name and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.16.1(a);
(div) such Transferee enters into an agreement (iI) in the form attached hereto as Exhibit C or (iiII) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(ev) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (iI) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (iiII) that each agreement referred to in Section 6.1(d6.1(a)(iv) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iiiIII) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(fvi) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(gvii) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(hviii) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(iix) such transfer either (iI) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (iiII) if clause (iI) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(jx) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(kxi) unless a Lease Event of Default shall have occurred and is continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(bSection
6.1 (a)(ii), provided that the Lessee may waive this requirement in writing;; 48
(lxii) the Transferee (iI) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) the Owner Participant shall deliver to the Lessee an Officer's Certificate certifying as to compliance with the transfer requirements specified in clauses (a), (g), (i), (j) and (l) above. Upon any such transfer (i) except as the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations of the Owner Participant to the extent of the interest transferred hereunder and under each other Operative Agreement to which the Owner Participant is a party, and, except as the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include such Transferee for all purposes to the extent of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreed) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.or
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Restrictions on Transfer of Beneficial Interest. (a) The Owner Participant agrees that it shall not, directly or indirectly, sell, convey, assign, pledge, mortgage or otherwise transfer may Transfer all or any part of the Beneficial Interest (collectively, for purposes of this Section 6.1, a "transfer") prior to the expiration or earlier termination of the Lease Term without the Lessee's and, so long as any Equipment Notes are outstanding, the Indenture Trustee's prior written consent; provided that no such consent shall be required if the following conditions are satisfied (it being understood that the Indenture Trustee's consent shall not be required for any waiver of the conditions set forth in clauses (b) or (k) below):
(a) the Person to whom such transfer is to be made (a "Transferee") is not bankrupt or insolvent and, so long as no Lease Event of Default is continuing, is (i) an institutional or corporate investor with tangible net worth or, in the case of a bank or lending institution, combined capital and surplus at the time of such transfer, of at least $75,000,000, determined in accordance with generally accepted accounting principles, as of the date of such transfer, or (ii) an Affiliate of an institutional or corporate investor that satisfies the requirements set forth in clause (i) above if such investor guarantees pursuant to a guaranty in form and substance reasonably satisfactory to the Lessee the obligations of the Owner Participant under the Operative Agreements assumed by such Affiliate as required herein or (iii) an Affiliate of the Owner Participant; Participant (provided that in the event of a transfer pursuant to clause (iii) which does not qualify under clauses (i) or (ii), the Owner Participant shall remain secondarily liable for all of its obligations under this Agreement and if such Affiliate does not meet the other Operative Agreements;
(b) neither the Transferee nor any of its Affiliates shall compete (directly net worth standard set forth in Section 8.1(a)(ii)(B), or indirectly) (other than as a passive investor or loan participant in the financing of equipment or facilities used in railcar leasing) with the Lessee or TILC (unless such non-competition requirement has been waived in writing by the Lessee and TILC) in any respect material to the full service railcar leasing business of the Lessee or TILC; provided that this clause (b) shall not apply (i) to any Transferee that is an Affiliate of the Owner Participant and (ii) in the event subject to Section 15.1 (Right of First Offer), to any other Person (an "Owner Participant Transferee"), provided, however, that a so long as no Lease Event of Default shall have occurred and be then continuing:
(A) AEE shall have received an opinion of counsel, which opinion and counsel are reasonably satisfactory to AEE, to the effect that all regulatory approvals required in connection with such Transfer or necessary for the Owner Participant Transferee to assume the Owner Participant's obligations under the Operative Documents shall have been obtained;
(cB) each the Owner Participant Transferee, or a guarantor thereof under an Owner Participant Parent Guaranty, (1) shall have a tangible net worth of at least $75,000,000, (2) shall be a United States person within the meaning of Section 7701(a)(30) of the Indenture Trustee, the Owner Trustee, the Lessee and the Policy Provider Code (unless AEE shall have received 10 days prior written notice an opinion of its tax counsel (in form, scope and substance satisfactory to it) that such transfer specifying Transfer shall not result in any material incremental adverse tax consequences to AEE), and (3) shall have agreed to be bound by the name terms of the Operative Documents pursuant to an Assignment and address of any proposed Transferee and such additional information as shall be reasonably necessary to determine whether the proposed transfer satisfies the requirements of this Section 6.1;Assumption Agreement; and
(dC) such Transferee enters into an agreement (i) in the form attached hereto as Exhibit C or (ii) otherwise in form and substance reasonably satisfactory to each of the Lessee (so long as no Lease Event of Bankruptcy Default is continuing) and the Owner Trustee and not reasonably objected to by the Indenture Trustee whereby such Transferee confirms that it shall be deemed a party to this Agreement and each other Operative Agreement to which the transferring Owner Participant is a party, and agrees to be bound by all the terms of, and to undertake all of the obligations and liabilities of the transferring Owner Participant contained in, this Agreement and such other Operative Agreements and in which the Transferee shall make representations and warranties comparable to those of the Owner Participant contained herein and therein;
(e) an opinion of counsel of the Transferee (which counsel shall be reasonably acceptable to the Lessee (so long as no Lease Event of Default is continuing), the Indenture Trustee and the Policy Provider), confirming (i) the existence, corporate power and authority of, and due authorization, execution and delivery of all relevant documentation by, the Transferee, (ii) that each agreement referred to in Section 6.1(d) above is the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms (subject to customary qualifications as to bankruptcy and equitable principles) and (iii) compliance of the transfer with applicable requirements of federal securities laws and securities laws of the Transferee's domicile, shall be provided, prior to such transfer, to each of the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee, which opinion shall be in form and substance reasonably satisfactory to the Lessee (so long as no Lease Event of Default is continuing) and the Indenture Trustee;
(f) except as specifically consented to in writing by each of the Lessee, the Owner Trustee, the Pass Through Trustee, the Indenture Trustee and the Policy Provider, the terms of the Operative Agreements shall not be altered;
(g) after giving effect to such transfer, the Beneficial Interest shall be held by not more than two Persons in the aggregate, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default;
(h) all reasonable expenses of the parties hereto (including, without limitation, reasonable legal fees and expenses of special counsel) incurred in connection with each transfer of such Beneficial Interest shall be paid by the transferring or transferee Owner Participant, except if such transfer occurs after the occurrence and during the continuance of a Lease Event of Default, provided that the Lessee shall not be obligated to pay such expenses to the extent that after giving effect to such transfer, the Beneficial Interest is held by more than two Persons;
(i) such transfer either (i) does not involve the use of any funds which constitute assets of an employee benefit plan subject to Title I of ERISA or Section 4975 of the Code or (ii) if clause (i) is not applicable, will not constitute a non-exempt prohibited transaction under Section 406(a)(1)(A) through (D) of ERISA or Section 4975(c)(1)(A) through (D) of the Code;
(j) as a result of and following such transfer, no Indenture Default attributable to the Owner Participant or the Owner Trustee shall have occurred and be continuing;
(k) unless a Lease Event of Default shall have occurred and is then continuing, the transfer does not involve the sale of the stock of any Owner Participant, the sole asset of which is all or a portion of the Beneficial Interest, to, or the merger of any such Owner Participant with or into, any Person which is a competitor of the Lessee or TILC as described in Section 6.1(b), provided that the Lessee may waive this requirement in writing;
(l) the Transferee (i) is a U.S. Person, provided that the Transferee is not a partnership, other flow through entity, or a disregarded entity, unless such Transferee is owned solely by one or more U.S. Persons or (ii) is engaged in a United States trade or business for purposes of Subtitle A, Chapter 1, Subchapter N of the Code and its acquisition of such Beneficial Interest is effectively connected with such trade or business; and
(m) neither the Owner Participant Transferee nor any Affiliate thereof shall deliver to be an Ineligible Transferee.
(b) Unless the Lessee Owner Participant was a Competitor at the time it became an Officer's Certificate certifying as to Owner Participant in compliance with Section 8.1, if the transfer requirements specified in clauses Owner Participant (a)or any Affiliate thereof) becomes a Competitor, (g), (i), (j) and (l) above. Upon any such transfer (i) except as then unless the context otherwise requires, such Transferee shall be deemed the "Owner Participant" for all purposes, and shall enjoy the rights and privileges and perform the obligations Participant has transferred its Beneficial Interest to an Affiliate of the Owner Participant to (in the extent of the interest transferred hereunder and under each other Operative Agreement to which case where the Owner Participant is becomes such a party, and, except as Competitor) and has put in place sufficient policies and procedures (reasonably satisfactory to AEE) to prevent the context otherwise requires, each reference in this Agreement and each other Operative Agreement to the "Owner Participant" shall thereafter be deemed to include Participant (or such Transferee for all purposes to the extent Affiliate of the interest transferred, and (ii) the transferor, except to the extent provided in Section 6.1(1) hereof and except in the case of a transfer to a Transferee described in the proviso to Section 6.1(a)(iii) hereof, shall be released from all obligations hereunder and under each other Operative Agreement to which such transferor is a party or by which such transferor is bound solely to the extent such obligations are expressly assumed by a Transferee; and provided, further, that in no event shall any such transfer or assignment waive or release the transferor from any liability on account of any breach existing prior to such transfer of any of its representations, warranties, covenants or obligations set forth herein or in any of the other Operative Agreements or for any fraudulent or willful misconduct. No Transferee shall be entitled to reimbursement by the Lessee under Section 7.1 or 7.2 or by TILC under Section 7.3 for any amount that would exceed the amount that would have been payable by the Lessee or TILC, as applicable, to the original Owner Participant, as a result of the Transferee engaging in a business or activity not generally conducted by other institutional or corporate investors in lease transactions. The Owner Participant hereby acknowledges and agrees (and each Transferee by virtue of any transfer shall be deemed to have acknowledged and agreedthat has become such a Competitor) to the terms of the Collateral Agency Agreement. Each Transferee agrees to provide to the Lessee as soon as practicable after the transfer of the Beneficial Interest to such Transferee a copy of the agreement and opinion delivered in connection with such transfer in accordance with the terms of Sections 6.1(d) and (e) if at the time of such transfer there shall have existed a Lease Event of Default. The Lessee agrees to provide notice to the Rating Agency of any proposed transfer by an Owner Participant no later than ten (10) days after Lessee's receipt of notice of such proposed transfer from an Owner Participant.from
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