RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the lien hereof, upon receipt by the Trustee of: (a) a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release; (b) an Officer’s Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing; (c) an Expert’s Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2: (i) describing the property to be released; (ii) stating the Fair Value, in the judgment of the signers, of the property to be released; (iii) stating the Funded Property Basis of the property to be released; and (iv) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof; (d) an Officer’s Certificate, substantially in the form attached hereto as Schedule 3, stating: (i) the amount in cash (the “Cash Deposit Amount”), if any, to be held by the Trustee and constituting Mortgaged Property (and which cash shall then constitute Funded Cash), which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined); and (ii) indicating one or more, or any combination, of the following property (collectively, the “Cash Deposit Credit Items”), if any, and the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order referred to in clause (a) above of this Section: (A) the aggregate principal amount of any Purchase Money Obligations delivered to the Trustee, to be held by the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon the property to be released; (B) the Adjusted Property Additions Basis (or, as provided below in this clause (ii)(B), the Property Additions Basis), of any Property Additions which constitute Unfunded Property described in an Expert’s Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 5.02(b), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis shall be substituted in lieu of the Adjusted Property Additions Basis if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order; (C) an amount equal to ten-sevenths (10/7ths) of the aggregate principal amount of Bonds to the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.03, by virtue of compliance with all applicable provisions of Section 5.03 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds and, to such extent, no such Bonds may thereafter be authenticated and delivered under Section 5.03; and any Bonds which were the basis of such right to the authentication and delivery of Bonds so waived shall be deemed to have been made the basis of such release of property; and (D) an amount equal to ten-sevenths (10/7ths) of the aggregate principal amount of any Outstanding Bonds delivered to the Trustee. (e) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s Certificate delivered to the Trustee pursuant to clause (d) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released; (f) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds under Section 5.03, all documents contemplated below in this Section; and (g) if the release is on the basis of the delivery to the Trustee of Purchase Money Obligations, as described in clause (d)(ii)(A) in this Section, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in clause (d)(ii)(B) in this Section), the Company shall, subject to the provisions of said clause (d)(ii)(B) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) of Section 5.02(b) as if such Property Additions were to be made the basis of the authentication and delivery of Bonds equal in principal amount to seventy percent (70%) of the Funded Property Basis of that portion of the property to be released, as shown by the Expert’s Certificate required by clause (c) in this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, for all purposes of this Indenture, be deemed to be the Fair Value of the property to be released as stated in the Expert’s Certificate provided for in clause (c) of this Section, (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, in whole or in part, based upon the right to the authentication and delivery of Bonds under Section 5.03 (as described in clause (d)(ii)(C) of this Section), the Company shall, except as hereafter in this paragraph provided, comply with Section 5.03(b) relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.01. If the release of property is, in whole or in part, based upon the delivery to the Trustee of Purchase Money Obligations (as described in clause (d)(ii)(A) of this Section), the Company shall deliver to the Trustee: (a) an Officer’s Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligations, if any, outstanding thereunder, (ii) reciting the aggregate principal amount of Purchase Money Obligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional Purchase Money Obligations are permitted to be issued; and (b) an Opinion of Counsel stating that, in the opinion of the signer, (i) such Purchase Money Obligations are valid obligations, (ii) such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon the property to be released, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the lien of this Indenture, (iii) if any Purchase Money Obligations in addition to the Purchase Money Obligations being delivered in connection with such release of property are then outstanding, or are permitted to be issued, under such Purchase Money Lien, (A) that such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 and (B) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided to the Trustee pursuant to clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Company. Any Outstanding Bonds delivered to the Trustee pursuant to clause (d)(ii)(D) of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations deposited with the Trustee pursuant to clause (d)(ii)(A) of this Section, and the proceeds of any such Purchase Money Obligations, shall be held by the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.07. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section and obtain the release of the part of such property which constitutes Unfunded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII. In such event, (i) the application of Property Additions in the release under clause (d)(ii)(B) of this Section shall be taken into account in clause (vi) or clause (vii), whichever may be applicable, of the Expert’s Certificate described in clause (c) in Section 8.04 and (ii) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.
Appears in 3 contracts
Samples: Indenture of Mortgage (PG&E Corp), Indenture of Mortgage (PG&E Corp), Indenture of Mortgage (PG&E Corp)
RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the lien Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
(b) an Officer’s 's Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c) an Expert’s 's Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii) stating the Funded Property Basis Cost of the property to be releasedreleased (or, if the Fair Value to the Company of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost); and
(iv) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d) an Officer’s Certificate, substantially in the form attached hereto as Schedule 3, stating:
(i) the amount in cash (the “Cash Deposit Amount”), if any, to be held by the Trustee and constituting as part of the Mortgaged Property (and which cash shall then constitute Funded Cash)Property, which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined); and
(ii) indicating one or more, or any combination, of the following property (collectively, the “Cash Deposit Credit Items”)amount, if any, and by which seventy percentum (70%) of the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order amount referred to in clause (ac)(iii) above exceeds the aggregate of this Sectionthe following items:
(Ai) an amount equal to seventy percentum (70%) of the aggregate principal amount of any obligations secured by Purchase Money Obligations Lien delivered to the Trustee, to be held by as part of the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon subject to the property to be releasedlimitations hereafter in this Section set forth;
(Bii) an amount equal to seventy percentum (70%) of the Adjusted Property Additions Basis Cost or Fair Value to the Company (or, as provided below in this clause (ii)(Bwhichever is less), the Property Additions Basis)after making any deductions and any additions pursuant to Section 1.03, of any Property Additions which constitute Unfunded not constituting Funded Property described in an Expert’s 's Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 5.02(b4.02(b), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis deductions and additions contemplated by Section 1.03 shall not be substituted in lieu of the Adjusted Property Additions Basis required to be made if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(Ciii) an amount equal to ten-sevenths (10/7ths) of the aggregate principal amount of Bonds Securities to the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.034.03, by virtue of compliance with all applicable provisions of Section 5.03 4.03 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds Securities and, to such extent, no such Bonds Securities may thereafter be authenticated and delivered under Section 5.03hereunder; and any Bonds Securities which were the basis of such right to the authentication and delivery of Bonds Securities so waived shall be deemed to have been made the basis of such release of property; and;
(Div) any amount in cash and/or an amount equal to ten-sevenths seventy percentum (10/7ths70%) of the aggregate principal amount of any obligations secured by Purchase Money Lien that, in either case, is evidenced to the Trustee by a certificate of the trustee or other holder of a Lien prior to the Lien of this Indenture to have been received by such trustee or other holder in accordance with the provisions of such Lien in consideration for the release of such property or any part thereof from such Lien, all subject to the limitations hereafter in this Section set forth;
(v) the aggregate principal amount of any Outstanding Bonds Securities delivered to the Trustee.; and
(evi) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s Certificate delivered to the Trustee pursuant to clause (d) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released;
(fe) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds Securities under Section 5.034.03, all documents contemplated below in this Section; and
(gf) if the release is on the basis of the delivery to the Trustee or to the trustee or other holder of a prior Lien of obligations secured by Purchase Money Obligations, as described in clause (d)(ii)(A) in this SectionLien, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in permitted under the provisions of clause (d)(ii)(Bd)(ii) in the first paragraph of this Section), the Company shall, subject to the provisions of said clause (d)(ii)(Bd)(ii) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) all applicable provisions of Section 5.02(b) this Indenture as if such Property Additions were to be made the basis of the authentication and delivery of Bonds Securities equal in principal amount to seventy percent percentum (70%) of the Cost (or, as to property of which the Fair Value to the Company at the time the same became Funded Property Basis was certified to be an amount less than the Cost thereof, such Fair Value, as so certified, in lieu of Cost) of that portion of the property to be releasedreleased which is to be released on the basis of such Property Additions, as shown by the Expert’s 's Certificate required by clause (c) in the first paragraph of this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, shall for all purposes of this Indenture, Indenture be deemed to be the amount stated in the Expert's Certificate provided for in clause (c) in the first paragraph of this Section to be the Fair Value of the property to be released as stated in the Expert’s Certificate provided for in clause (c) of this Section, (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s 's Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s 's Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, is in whole or in part, part based upon the right to the authentication and delivery of Bonds Securities under Section 5.03 4.03 (as described in permitted under the provisions of clause (d)(ii)(Cd)(iii) in the first paragraph of this Section), the Company shall, except as hereafter in this paragraph provided, comply with all applicable provisions of Section 5.03(b) 4.03 relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.014.01. If the release of property is, in whole or in part, based upon the delivery to the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture of obligations secured by Purchase Money Obligations (as described in clause (d)(ii)(A) of this Section)Lien, the Company shall deliver to the Trustee:
(a) an Officer’s 's Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the such Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligationsobligations, if any, outstanding thereunder, thereunder and (ii) reciting the aggregate principal amount of Purchase Money Obligationsobligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional obligations secured by such Purchase Money Obligations Lien are permitted to be issued; and
(b) an Opinion of Counsel stating that, in the opinion of the signer, (i) such Purchase Money Obligations obligations are valid obligations, entitled to the benefit of such Purchase Money Lien equally and ratably with all other obligations, if any, then outstanding thereunder, (ii) that such Purchase Money Lien constitutes, or, upon the taking delivery of, and/or the filing and/or recording in the proper places and manner of, the instruments of the actions conveyance, assignment or transfer, if any, specified in such opinion, will constitute, a Lien upon the property to be released, subject, to the knowledge of such counsel, subject to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the lien Lien of this Indenture, (iii) if any Purchase Money Obligations obligations in addition to the Purchase Money Obligations obligations being delivered in connection with such release of property are then outstanding, or are permitted to be issued, under such Purchase Money Lien, (A) that such Purchase Money Lien constitutes, or, upon the taking delivery of, and/or the filing and/or recording in the proper places and manner of, the instruments of the actions conveyance, assignment or transfer, if any, specified in such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, subject to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 6.06 and (B) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligationsobligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided Anything herein to the Trustee contrary notwithstanding (a) the aggregate principal amount of obligations secured by Purchase Money Lien which may be used pursuant to subclause (i) and/or subclause (iv) of clause (d) in the first paragraph of this Section as the basis for the release of property from the Lien of this Indenture shall not exceed seventy-five percentum (75%) of the Fair Value of the property to be released, as certified pursuant to clause (c)(ii) in the first paragraph of this Section, and (b) no obligations secured by Purchase Money Lien shall be used as the basis for the release of property hereunder, if the aggregate principal amount of such obligations to be used by the Company pursuant to subclause (i) and/or subclause (iv) of such clause (d) plus the aggregate principal amount used by the Company pursuant to said subclause (i) and subclause (iv) in connection with all previous releases of property from the Lien hereof on the basis of obligations secured by Purchase Money Lien theretofore delivered to and then held by the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture shall, immediately after the release then being applied for, exceed forty percentum (40%) of the sum of (1) the aggregate principal amount of Securities then Outstanding and (2) the aggregate principal amount of First Mortgage Bonds then Outstanding; provided, however, that the limitation set forth in clause (a) above shall not be applicable if no additional obligations are then outstanding, or are permitted to be issued, under the Purchase Money Lien securing such obligations; and provided, further, that there shall not be taken into account for purposes of the calculation contemplated in clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company obligations secured by Purchase Money Lien with respect to which there shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Company. Any Outstanding Bonds have been delivered to the Trustee pursuant to clause (d)(ii)(D) of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations deposited with the Trustee pursuant to clause (d)(ii)(A) of this Section, and the proceeds of any such Purchase Money Obligations, shall be held by the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.07. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section and obtain the release of the part of such property which constitutes Unfunded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII. In such event, (i) the application of Property Additions in the release under clause (d)(ii)(B) of this Section shall be taken into account in clause (vi) or clause (vii), whichever may be applicable, of the Expert’s Certificate described in clause (c) in Section 8.04 and (ii) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.:
Appears in 2 contracts
Samples: General and Refunding Mortgage Indenture (Nevada Power Co), General and Refunding Mortgage Indenture (Nevada Power Co)
RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, other than Funded Cash held by the Trustee, and the Trustee shall release all its right, title and interest in and to the same from the lien Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property and transmitting therewith a form of instrument or instruments to effect such release;
(b) an Officer’s Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c) an Expert’s Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii) stating the Funded Property Basis Cost of the property to be releasedreleased (or, if the Fair Value to the Company of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost); and
(iv) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d) an Officer’s Certificate, substantially in the form attached hereto as Schedule 3, stating:
(i) the amount in cash (the “Cash Deposit Amount”), if any, to be held by the Trustee and constituting as part of the Mortgaged Property (and which cash shall then constitute Funded Cash)Property, which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined); and
(ii) indicating one or more, or any combination, of the following property (collectively, the “Cash Deposit Credit Items”)amount, if any, and by which the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order amount referred to in clause (ac)(iii) above exceeds the aggregate of this Sectionthe following items:
(Ai) an amount equal to the aggregate principal amount of any obligations secured by Purchase Money Obligations Lien delivered to the Trustee, to be held by as part of the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon subject to the property to be releasedlimitations hereafter in this Section set forth;
(Bii) an amount equal to the Adjusted Property Additions Basis Cost or Fair Value to the Company (or, as provided below in this clause (ii)(Bwhichever is less), the Property Additions Basis)after making any deductions and any additions pursuant to Section 1.03, of any Property Additions which constitute Unfunded not constituting Funded Property described in an Expert’s Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 5.02(b16.02(b), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis deductions and additions contemplated by Section 1.03 shall not be substituted in lieu of the Adjusted Property Additions Basis required to be made if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(Ciii) an amount equal to ten-sevenths one hundred fifty percent (10/7ths150%) of the aggregate principal amount of Bonds Securities to the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.0316.03, by virtue of compliance with all applicable provisions of Section 5.03 16.03 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds Securities and, to such extent, no such Bonds Securities may thereafter be authenticated and delivered under Section 5.03hereunder; and any Bonds Securities which were could have been the basis of such right to the authentication and delivery of Bonds Securities so waived shall be deemed to have been made the basis of such release of property; and;
(Div) any amount in cash and/or an amount equal to ten-sevenths the aggregate principal amount of any obligations secured by Purchase Money Lien that, in either case, is evidenced to the Trustee by a certificate of the trustee or other holder of a Lien prior to the Lien of this Indenture to have been received by such trustee or other holder in accordance with the provisions of such Lien in consideration for the release of such property or any part thereof from such Lien, all subject to the limitations hereafter in this Section set forth;
(10/7thsv) one hundred fifty percent (150%) of the aggregate principal amount of any Outstanding Bonds delivered to the Trustee.
(e) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s Certificate Securities delivered to the Trustee (other than Securities authenticated and delivered pursuant to clause Section 16.04); and
(dvi) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released; provided, however, that no obligations secured by Purchase Money Lien upon any property being released from the Lien hereof shall be used as a credit in connection with such release unless all obligations secured by such Purchase Money Lien shall be delivered to the Trustee or to the trustee or other holder of a Lien prior to the Lien of this Indenture;
(fe) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds Securities under Section 5.0316.03, all documents contemplated below in this Section; and
(gf) if the release is on the basis of the delivery to the Trustee or to the trustee or other holder of a prior Lien of obligations secured by Purchase Money Obligations, as described in clause (d)(ii)(A) in this SectionLien, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in permitted under the provisions of clause (d)(ii)(Bd)(ii) in the first paragraph of this Section), the Company shall, subject to the provisions of said clause (d)(ii)(Bd)(ii) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) all applicable provisions of Section 5.02(b) this Indenture as if such Property Additions were to be made the basis of the authentication and delivery of Bonds Securities equal in principal amount to seventy sixty-six and two-thirds percent (7066-2/3%) of the Cost (or, as to property of which the Fair Value to the Company at the time the same became Funded Property Basis was certified to be an amount less than the Cost thereof, such Fair Value, as so certified, in lieu of Cost) of that portion of the property to be releasedreleased which is to be released on the basis of such Property Additions, as shown by the Expert’s Certificate required by clause (c) in the first paragraph of this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, shall for all purposes of this Indenture, Indenture be deemed to be the Fair Value of the property to be released as amount stated in the Expert’s Certificate provided for in clause (c) in the first paragraph of this Section, Section to be the lower of Cost or Fair Value of the property to be released (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, is in whole or in part, part based upon the right to the authentication and delivery of Bonds Securities under Section 5.03 16.03 (as described in permitted under the provisions of clause (d)(ii)(Cd)(iii) in the first paragraph of this Section), the Company shall, except as hereafter in this paragraph provided, comply with all applicable provisions of Section 5.03(b) 16.03 relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.013.03. If the release of property is, in whole or in part, based upon the delivery to the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture of obligations secured by Purchase Money Obligations (as described in clause (d)(ii)(A) of this Section)Lien, the Company shall deliver to the Trustee:
(a) an Officer’s Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligations, if any, outstanding thereunder, (ii) reciting the aggregate principal amount of Purchase Money Obligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional Purchase Money Obligations are permitted to be issued; and
(b) an Opinion of Counsel stating that, in the opinion of the signer, (i) such Purchase Money Obligations are valid obligations, (ii) such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon the property to be released, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the lien of this Indenture, (iii) if any Purchase Money Obligations in addition to the Purchase Money Obligations being delivered in connection with such release of property are then outstanding, or are permitted to be issued, under such Purchase Money Lien, (A) that such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 and (B) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided to the Trustee pursuant to clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Company. Any Outstanding Bonds delivered to the Trustee pursuant to clause (d)(ii)(D) of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations deposited with the Trustee pursuant to clause (d)(ii)(A) of this Section, and the proceeds of any such Purchase Money Obligations, shall be held by the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.07. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section and obtain the release of the part of such property which constitutes Unfunded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII. In such event, (i) the application of Property Additions in the release under clause (d)(ii)(B) of this Section shall be taken into account in clause (vi) or clause (vii), whichever may be applicable, of the Expert’s Certificate described in clause (c) in Section 8.04 and (ii) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.
Appears in 2 contracts
Samples: First Mortgage (Duke Energy Ohio, Inc.), First Mortgage (Duke Energy Ohio, Inc.)
RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the lien Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
(b) an Officer’s Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c) an Expert’s Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii) stating the Funded Property Basis Cost of the property to be releasedreleased (or, if the Fair Value to the Company of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost); and
(iv) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d) an Officer’s Certificate, substantially in the form attached hereto as Schedule 3, stating:
(i) the amount in cash (the “Cash Deposit Amount”), if any, to be held by the Trustee and constituting as part of the Mortgaged Property (and which cash shall then constitute Funded Cash)Property, which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined); and
(ii) indicating one or more, or any combination, of the following property (collectively, the “Cash Deposit Credit Items”)amount, if any, and by which 70% of the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order amount referred to in clause (ac)(iii) above exceeds the aggregate of this Sectionthe following items:
(Ai) an amount equal to 70% of the aggregate principal amount of any obligations secured by Purchase Money Obligations Lien delivered to the Trustee, to be held by as part of the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon subject to the property to be releasedlimitations hereafter in this Section 8.3 set forth;
(Bii) an amount equal to 70% of the Adjusted Property Additions Basis Cost or Fair Value to the Company (or, as provided below in this clause (ii)(Bwhichever is less), the Property Additions Basis)after making any deductions and any additions pursuant to Section 1.3, of any Property Additions which constitute Unfunded not constituting Funded Property described in an Expert’s Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 5.02(b4.2(b), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis deductions and additions contemplated by Section 1.3 shall not be substituted in lieu of the Adjusted Property Additions Basis required to be made if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(Ciii) an amount equal to ten-sevenths (10/7ths) of the aggregate principal amount of Bonds to Securities for which the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.034.3, by virtue of compliance with all applicable provisions of Section 5.03 4.3 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds Securities and, to such extent, no such Bonds Securities may thereafter be authenticated and delivered under Section 5.03hereunder; and any Bonds Securities which were the basis of such right to the authentication and delivery of Bonds Securities so waived shall be deemed to have been made the basis of such release of property; and;
(Div) an any amount equal to ten-sevenths in cash;
(10/7thsv) of the aggregate principal amount of any Outstanding Bonds Securities delivered to the Trustee.; and
(evi) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s Certificate delivered to the Trustee pursuant to clause (d) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released;
(fe) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds Securities under Section 5.034.3, all documents contemplated below in this Section; and
(gf) if the release is on the basis of the delivery to the Trustee or to the trustee or other holder of a prior Lien of obligations secured by a Purchase Money Obligations, as described in clause (d)(ii)(A) in this SectionLien, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in permitted under the provisions of clause (d)(ii)(Bd)(ii) in the first paragraph of this Section), the Company shall, subject to the provisions of said clause (d)(ii)(Bd)(ii) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) all applicable provisions of Section 5.02(b) this Indenture as if such Property Additions were to be made the basis of the authentication and delivery of Bonds Securities equal in principal amount to seventy percent (70%) % of the Cost (or, as to property of which the Fair Value to the Company at the time the same became Funded Property Basis was certified to be an amount less than the Cost thereof, such Fair Value, as so certified, in lieu of Cost) of that portion of the property to be releasedreleased which is to be released on the basis of such Property Additions, as shown by the Expert’s Certificate required by clause (c) in the first paragraph of this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, shall for all purposes of this Indenture, Indenture be deemed to be the Fair Value of the property to be released as amount stated in the Expert’s Certificate provided for in clause (c) in the first paragraph of this Section, Section to be the Fair Value of the property to be released (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, is in whole or in part, part based upon the right to the authentication and delivery of Bonds Securities under Section 5.03 4.3 (as described in permitted under the provisions of clause (d)(ii)(Cd)(ii) in the first paragraph of this Section), the Company shall, except as hereafter in this paragraph provided, comply with all applicable provisions of Section 5.03(b) 4.3 relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.014.1. If the release of property is, in whole or in part, based upon the delivery to the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture of obligations secured by a Purchase Money Obligations Lien (as described in permitted under the provisions of clause (d)(ii)(Ad)(i) in the first paragraph of this Section), the Company shall deliver to the Trustee:
(a) an Officer’s Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the such Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligationsobligations, if any, outstanding thereunder, thereunder and (ii) reciting the aggregate principal amount of Purchase Money Obligationsobligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional obligations secured by such Purchase Money Obligations Lien are permitted to be issued; and
(b) an Opinion of Counsel stating that, in the opinion of the signer, that (i) such Purchase Money Obligations obligations are valid obligations, entitled to the benefit of such Purchase Money Lien equally and ratably with all other obligations, if any, then outstanding thereunder, and (ii) that such Purchase Money Lien constitutes, or, upon the taking delivery of, and/or the filing and/or recording in the proper places and manner of, the instruments of the actions conveyance, assignment or transfer, if any, specified in such opinion, will constitute, a Lien upon the property to be released, subject, to the knowledge of such counsel, subject to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the lien Lien of this Indenture, . Anything herein to the contrary notwithstanding (iiia) if any the aggregate principal amount of obligations secured by Purchase Money Obligations Liens which may be used pursuant to clause (d)(i) in addition the first paragraph of this Section as the basis for the release of property from the Lien of this Indenture shall not exceed 75% of the Fair Value of the property to be released, as certified pursuant to clause (c)(ii) in the first paragraph of this Section, and (b) no obligations secured by Purchase Money Obligations being delivered Liens shall be used as the basis for the release of property hereunder, if the aggregate principal amount of such obligations to be used by the Company pursuant to clause (d)(i) plus the aggregate principal amount used by the Company pursuant to clause (d)(i) in connection with such release all previous releases of property from the Lien hereof on the basis of obligations secured by a Purchase Money Lien theretofore delivered to and then held by the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture shall, immediately after the release then being applied for, exceed 40% of the sum of the aggregate principal amount of Securities then Outstanding; provided, however, that the limitation set forth in clause (a) above shall not be applicable if no additional obligations are then outstanding, or are permitted to be issued, under such Purchase Money Lien, (A) that such the Purchase Money Lien constitutessecuring such obligations; and provided, orfurther, upon the taking that there shall not be taken into account for purposes of the actions specified calculation contemplated in such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 and (B) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided to the Trustee pursuant to clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company obligations secured by Purchase Money Lien with respect to which there shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Company. Any Outstanding Bonds have been delivered to the Trustee pursuant to clause (d)(ii)(D) of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations deposited with the Trustee pursuant to clause (d)(ii)(A) of this Section, and the proceeds of any such Purchase Money Obligations, shall be held by the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.07. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section and obtain the release of the part of such property which constitutes Unfunded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII. In such event, (i) the application of Property Additions in the release under clause (d)(ii)(B) of this Section shall be taken into account in clause (vi) or clause (vii), whichever may be applicable, of the Expert’s Certificate described in clause (c) in Section 8.04 and (ii) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.:
Appears in 1 contract
Samples: First Mortgage Indenture (South Jersey Industries Inc)
RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the lien Lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
(b) an Officer’s 's Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c) an Expert’s 's Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii) stating the Funded Property Basis Cost of the property to be releasedreleased (or, if the Fair Value to the Company of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost); and
(iv) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d) an Officer’s Certificate, substantially in the form attached hereto as Schedule 3, stating:
(i) the amount in cash (the “Cash Deposit Amount”), if any, to be held by the Trustee and constituting as part of the Mortgaged Property (and which cash shall then constitute Funded Cash)Property, which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined); and
(ii) indicating one or more, or any combination, of the following property (collectively, the “Cash Deposit Credit Items”)amount, if any, and by which sixty-five percentum (65%) of the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order amount referred to in clause (ac)(iii) above exceeds the aggregate of this Sectionthe following items:
(Ai) an amount equal to sixty-five percentum (65%) of the aggregate principal amount of any obligations secured by Purchase Money Obligations Lien delivered to the Trustee, to be held by as part of the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon subject to the property to be releasedlimitations hereafter in this Section set forth;
(Bii) an amount equal to sixty-five percentum (65%) of the Adjusted Property Additions Basis Cost or Fair Value to the Company (or, as provided below in this clause (ii)(Bwhichever is less), the Property Additions Basis)after making any deductions and any additions pursuant to Section 1.03, of any Property Additions which constitute Unfunded not constituting Funded Property described in an Expert’s 's Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 5.02(b4.02(b), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis deductions and additions contemplated by Section 1.03 shall not be substituted in lieu of the Adjusted Property Additions Basis required to be made if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(Ciii) an amount equal to ten-sevenths (10/7ths) of the aggregate principal amount of Bonds Securities to the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.034.03, by virtue of compliance with all applicable provisions of Section 5.03 4.03 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds Securities and, to such extent, no such Bonds Securities may thereafter be authenticated and delivered under Section 5.03hereunder; and any Bonds Securities which were the basis of such right to the authentication and delivery of Bonds Securities so waived shall be deemed to have been made the basis of such release of property; and;
(Div) any amount in cash and/or an amount equal to tensixty-sevenths five percentum (10/7ths65%) of the aggregate principal amount of any obligations secured by Purchase Money Lien that, in either case, is evidenced to the Trustee by a certificate of the trustee or other holder of a Lien prior to the Lien of this Indenture to have been received by such trustee or other holder in accordance with the provisions of such Lien in consideration for the release of such property or any part thereof from such Lien, all subject to the limitations hereafter in this Section set forth;
(v) the aggregate principal amount of any Outstanding Bonds Securities delivered to the Trustee.; and
(evi) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s Certificate delivered to the Trustee pursuant to clause (d) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released;
(fe) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds Securities under Section 5.034.03, all documents contemplated below in this Section; and
(gf) if the release is on the basis of the delivery to the Trustee or to the trustee or other holder of a prior Lien of obligations secured by Purchase Money Obligations, as described in clause (d)(ii)(A) in this SectionLien, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in permitted under the provisions of clause (d)(ii)(Bd)(ii) in the first paragraph of this Section), the Company shall, subject to the provisions of said clause (d)(ii)(Bd)(ii) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) all applicable provisions of Section 5.02(b) this Indenture as if such Property Additions were to be made the basis of the authentication and delivery of Bonds Securities equal in principal amount to seventy percent sixty-five percentum (7065%) of the Cost (or, as to property of which the Fair Value to the Company at the time the same became Funded Property Basis was certified to be an amount less than the Cost thereof, such Fair Value, as so certified, in lieu of Cost) of that portion of the property to be releasedreleased which is to be released on the basis of such Property Additions, as shown by the Expert’s 's Certificate required by clause (c) in the first paragraph of this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, shall for all purposes of this Indenture, Indenture be deemed to be the amount stated in the Expert's Certificate provided for in clause (c) in the first paragraph of this Section to be the Fair Value of the property to be released as stated in the Expert’s Certificate provided for in clause (c) of this Section, (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s 's Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s 's Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, is in whole or in part, part based upon the right to the authentication and delivery of Bonds Securities under Section 5.03 4.03 (as described in permitted under the provisions of clause (d)(ii)(Cd)(iii) in the first paragraph of this Section), the Company shall, except as hereafter in this paragraph provided, comply with all applicable provisions of Section 5.03(b) 4.03 relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.014.01. If the release of property is, in whole or in part, based upon the delivery to the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture of obligations secured by Purchase Money Obligations (as described in clause (d)(ii)(A) of this Section)Lien, the Company shall deliver to the Trustee:
(a) an Officer’s 's Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the such Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligationsobligations, if any, outstanding thereunder, thereunder and (ii) reciting the aggregate principal amount of Purchase Money Obligationsobligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional obligations secured by such Purchase Money Obligations Lien are permitted to be issued; and
(b) an Opinion of Counsel stating that, in the opinion of the signer, (i) such Purchase Money Obligations obligations are valid obligations, entitled to the benefit of such Purchase Money Lien equally and ratably with all other obligations, if any, then outstanding thereunder, and (ii) that such Purchase Money Lien constitutes, or, upon the taking delivery of, and/or the filing and/or recording in the proper places and manner of, the instruments of the actions conveyance, assignment or transfer, if any, specified in such opinion, will constitute, a Lien upon the property to be released, subject, to the knowledge of such counsel, subject to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the lien Lien of this Indenture, . Anything herein to the contrary notwithstanding (iiia) if any the aggregate principal amount of obligations secured by Purchase Money Obligations Liens which may be used pursuant to subclause (i) and/or subclause (iv) of clause (d) in addition the first paragraph of this Section as the basis for the release of property from the Lien of this Indenture shall not exceed seventy-five percentum (75%) of the Fair Value of the property to be released, as certified pursuant to clause (c)(ii) in the first paragraph of this Section, and (b) no obligations secured by Purchase Money Obligations being delivered Liens shall be used as the basis for the release of property hereunder, if the aggregate principal amount of such obligations to be used by the Company pursuant to subclause (i) and/or subclause (iv) of such clause (d) plus the aggregate principal amount used by the Company pursuant to said subclause (i) and subclause (iv) in connection with such release all previous releases of property from the Lien hereof on the basis of obligations secured by a Purchase Money Lien theretofore delivered to and then held by the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture shall, immediately after the release then being applied for, exceed forty percentum (40%) of the sum of the aggregate principal amount of Securities then Outstanding; provided, however, that the limitation set forth in clause (a) above shall not be applicable if no additional obligations are then outstanding, or are permitted to be issued, under such Purchase Money Lien, (A) that such the Purchase Money Lien constitutessecuring such obligations; and provided, orfurther, upon the taking that there shall not be taken into account for purposes of the actions specified calculation contemplated in such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 and (B) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided to the Trustee pursuant to clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company obligations secured by Purchase Money Lien with respect to which there shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Company. Any Outstanding Bonds have been delivered to the Trustee pursuant to clause (d)(ii)(D) of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations deposited with the Trustee pursuant to clause (d)(ii)(A) of this Section, and the proceeds of any such Purchase Money Obligations, shall be held by the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.07. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section and obtain the release of the part of such property which constitutes Unfunded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII. In such event, (i) the application of Property Additions in the release under clause (d)(ii)(B) of this Section shall be taken into account in clause (vi) or clause (vii), whichever may be applicable, of the Expert’s Certificate described in clause (c) in Section 8.04 and (ii) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.:
Appears in 1 contract
RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
(b) an Officer’s 's Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c) an Expert’s 's Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii) stating the Funded Property Basis of the property to be released; and
(iv) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d) an Officer’s 's Certificate, substantially in the form attached hereto as Schedule 3, stating:
(i) the amount in cash (the “"Cash Deposit Amount”"), if any, to be held by the Trustee and constituting Mortgaged Property (and which cash shall then constitute Funded Cash), which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined)Items; and
(ii) indicating one or more, or any combination, of the following property (collectively, the “"Cash Deposit Credit Items”"), if any, and the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order referred to in clause (a) above of this Section:
(A) the aggregate principal amount of any Purchase Money Obligations delivered to the Trustee, to be held by the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon the property to be released;
(B) the Adjusted Property Additions Basis (or, as provided below in this clause (ii)(B), the Property Additions Basis), of any Property Additions which constitute Unfunded Property described in an Expert’s 's Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 5.02(b), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis shall be substituted in lieu of the Adjusted Property Additions Basis if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(C) an amount equal to ten-sevenths one hundred fifty percent (10/7ths150%) of the aggregate principal amount of Bonds to the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.03, by virtue of compliance with all applicable provisions of Section 5.03 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds and, to such extent, no such Bonds may thereafter be authenticated and delivered under Section 5.03; and any Bonds which were the basis of such right to the authentication and delivery of Bonds so waived shall be deemed to have been made the basis of such release of property; and
(D) an amount equal to ten-sevenths one hundred fifty percent (10/7ths150%) of the aggregate principal amount of any Outstanding Bonds delivered to the Trustee.
(e) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s 's Certificate delivered to the Trustee pursuant to clause (d) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released;
(f) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds under Section 5.03, all documents contemplated below in this Section; and
(g) if the release is on the basis of the delivery to the Trustee of Purchase Money Obligations, as described in clause (d)(ii)(A) in this Section, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in clause (d)(ii)(B) in this Section), the Company shall, subject to the provisions of said clause (d)(ii)(B) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) of Section 5.02(b) as if such Property Additions were to be made the basis of the authentication and delivery of Bonds equal in principal amount to seventy sixty-six and two-thirds percent (7066 2/3%) of the Funded Property Basis of that portion of the property to be released, as shown by the Expert’s 's Certificate required by clause (c) in this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, for all purposes of this Indenture, be deemed to be the Fair Value of the property to be released as stated in the Expert’s 's Certificate provided for in clause (c) of this Section, (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s 's Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s 's Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, in whole or in part, based upon the right to the authentication and delivery of Bonds under Section 5.03 (as described in clause (d)(ii)(C) of this Section), the Company shall, except as hereafter in this paragraph provided, comply with Section 5.03(b) relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.01. If the release of property is, in whole or in part, based upon the delivery to the Trustee of Purchase Money Obligations (as described in clause (d)(ii)(A) of this Section), the Company shall deliver to the Trustee:
(a) an Officer’s 's Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligations, if any, outstanding thereunder, (ii) reciting the aggregate principal amount of Purchase Money Obligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional Purchase Money Obligations are permitted to be issued; and
(b) an Opinion of Counsel stating that, in the opinion of the signer, (i) such Purchase Money Obligations are valid obligations, (ii) such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon the property to be released, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the lien of this Indenture, (iii) if any Purchase Money Obligations in addition to the Purchase Money Obligations being delivered in connection with such release of property are then outstanding, or are permitted to be issued, under such Purchase Money Lien, (A) that such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 and (B) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided to the Trustee pursuant to clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Company. Any Outstanding Bonds delivered to the Trustee pursuant to clause (d)(ii)(D) of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations deposited with the Trustee pursuant to clause (d)(ii)(A) of this Section, and the proceeds of any such Purchase Money Obligations, shall be held by the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.07. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section and obtain the release of the part of such property which constitutes Unfunded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII. In such event, (i) the application of Property Additions in the release under clause (d)(ii)(B) of this Section shall be taken into account in clause (vi) or clause (vii), whichever may be applicable, of the Expert’s 's Certificate described in clause (c) in Section 8.04 and (ii) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.
Appears in 1 contract
Samples: Security Agreement and Mortgage (Pacific Gas & Electric Co)
RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the lien Lien hereof, upon receipt by the Trustee of:
(a1) a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
(b2) an Officer’s 's Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c3) an Expert’s 's Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2:
(iA) describing the property to be released;
(iiB) stating the Fair Value, in the judgment of the signers, of the property to be released;
(iiiC) stating the Funded Property Basis Cost of the property to be releasedreleased (or, if the Fair Value to the Company of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost); and
(ivD) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d4) an Officer’s Certificate, substantially in the form attached hereto as Schedule 3, stating:
(i) the amount in cash (the “Cash Deposit Amount”), if any, to be held by the Trustee and constituting as part of the Mortgaged Property (and which cash shall then constitute Funded Cash)Property, which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined); and
(ii) indicating one or more, or any combination, of the following property (collectively, the “Cash Deposit Credit Items”)amount, if any, and by which seventy percentum (70%) of the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order amount referred to in clause (a3)(C) above exceeds the aggregate of this Sectionthe following items:
(A) an amount equal to seventy percentum (70%) of the aggregate principal amount of any obligations secured by Purchase Money Obligations Lien delivered to the Trustee, to be held by as part of the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon subject to the property to be releasedlimitations hereafter in this Section set forth;
(B) an amount equal to seventy percentum (70%) of the Adjusted Property Additions Basis Cost or Fair Value to the Company (or, as provided below in this clause (ii)(Bwhichever is less), the Property Additions Basis)after making any deductions and any additions pursuant to Section 103, of any Property Additions which constitute Unfunded not constituting Funded Property described in an Expert’s 's Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (iiB) and, to the extent applicable, clause (iiiC) in Section 5.02(b402(2), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis deductions and additions contemplated by Section 103 shall not be substituted in lieu of the Adjusted Property Additions Basis required to be made if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(C) an amount equal to ten-sevenths (10/7ths) of the aggregate principal amount of Bonds Securities to the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.03403, by virtue of compliance with all applicable provisions of Section 5.03 403 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds Securities and, to such extent, no such Bonds Securities may thereafter be authenticated and delivered under Section 5.03hereunder; and any Bonds Securities which were the basis of such right to the authentication and delivery of Bonds Securities so waived shall be deemed to have been made the basis of such release of property; and;
(D) any amount in cash and/or an amount equal to ten-sevenths seventy percentum (10/7ths70%) of the aggregate principal amount of any obligations secured by Purchase Money Lien that, in either case, is evidenced to the Trustee by a certificate of the trustee or other holder of a Lien prior to the Lien of this Indenture to have been received by such trustee or other holder in accordance with the provisions of such Lien in consideration for the release of such property or any part thereof from such Lien, all subject to the limitations hereafter in this Section set forth;
(E) the aggregate principal amount of any Outstanding Bonds Securities delivered to the Trustee.; and
(eF) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s Certificate delivered to the Trustee pursuant to clause (d) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released;
(f5) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds Securities under Section 5.03403, all documents contemplated below in this Section; and
(g6) if the release is on the basis of the delivery to the Trustee or to the trustee or other holder of a prior Lien of obligations secured by Purchase Money Obligations, as described in clause (d)(ii)(A) in this SectionLien, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in permitted under the provisions of clause (d)(ii)(B4)(B) in the first paragraph of this Section), the Company shall, subject to the provisions of said clause (d)(ii)(B4)(B) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) all applicable provisions of Section 5.02(b) this Indenture as if such Property Additions were to be made the basis of the authentication and delivery of Bonds Securities equal in principal amount to seventy percent percentum (70%) of the Cost (or, as to property of which the Fair Value to the Company at the time the same became Funded Property Basis was certified to be an amount less than the Cost thereof, such Fair Value, as so certified, in lieu of Cost) of that portion of the property to be releasedreleased which is to be released on the basis of such Property Additions, as shown by the Expert’s 's Certificate required by clause (c3) in the first paragraph of this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, shall for all purposes of this Indenture, Indenture be deemed to be the amount stated in the Expert's Certificate provided for in clause (3) in the first paragraph of this Section to be the Fair Value of the property to be released as stated in the Expert’s Certificate provided for in clause (c) of this Section, (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s 's Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s 's Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, is in whole or in part, part based upon the right to the authentication and delivery of Bonds Securities under Section 5.03 403 (as described in permitted under the provisions of clause (d)(ii)(C4)(C) in the first paragraph of this Section), the Company shall, except as hereafter in this paragraph provided, comply with all applicable provisions of Section 5.03(b) 403 relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.01401. If the release of property is, in whole or in part, based upon the delivery to the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture of obligations secured by Purchase Money Obligations (as described in clause (d)(ii)(A) of this Section)Lien, the Company shall deliver to the Trustee:
(aA) an Officer’s 's Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the such Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligationsobligations, if any, outstanding thereunder, thereunder and (ii) reciting the aggregate principal amount of Purchase Money Obligationsobligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional obligations secured by such Purchase Money Obligations Lien are permitted to be issued; and
(bB) an Opinion of Counsel stating that, in the opinion of the signer, (i) such obligations are valid and legally binding obligations, enforceable against the Company (subject to customary exceptions) and entitled to the benefit of such Purchase Money Obligations are valid Lien equally and ratably with all other obligations, if any, then outstanding thereunder, (ii) that such Purchase Money Lien constitutes, or, upon the taking delivery of, and/or the filing and/or recording in the proper places and manner of, the instruments of the actions conveyance, assignment or transfer, if any, specified in such opinion, will constitute, a Lien upon the property to be released, subject, to the knowledge of such counsel, subject to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the lien Lien of this Indenture, (iii) if any Purchase Money Obligations obligations in addition to the Purchase Money Obligations obligations being delivered in connection with such release of property are then outstanding, or are permitted to be issued, under such Purchase Money Lien, (Aa) that such Purchase Money Lien constitutes, or, upon the taking delivery of, and/or the filing and/or recording in the proper places and manner of, the instruments of the actions conveyance, assignment or transfer, if any, specified in such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, subject to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 606 and (Bb) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligationsobligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided Anything herein to the Trustee contrary notwithstanding (a) the aggregate principal amount of obligations secured by Purchase Money Lien which may be used pursuant to subclause (A) and/or subclause (D) of clause (4) in the first paragraph of this Section as the basis for the release of property from the Lien of this Indenture shall not exceed seventy-five percentum (75%) of the Fair Value of the property to be released, as certified pursuant to clause (3)(B) in the first paragraph of this Section, and (b) no obligations secured by Purchase Money Lien shall be used as the basis for the release of property hereunder, if the aggregate principal amount of such obligations to be used by the Company pursuant to subclause (A) and/or subclause (D) of such clause (4) plus the aggregate principal amount used by the Company pursuant to said subclause (A) and subclause (D) in connection with all previous releases of property from the Lien hereof on the basis of obligations secured by Purchase Money Lien theretofore delivered to and then held by the Trustee or the trustee or other holder of a Lien prior to the Lien of this Indenture shall, immediately after the release then being applied for, exceed forty percentum (40%) of the aggregate principal amount of Securities then Outstanding; provided, however, that the limitation set forth in clause (a) above shall not be applicable if no additional obligations are then outstanding, or are permitted to be issued, under the Purchase Money Lien securing such obligations; and provided, further, that there shall not be taken into account for purposes of the calculation contemplated in clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company obligations secured by Purchase Money Lien with respect to which there shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Company. Any Outstanding Bonds have been delivered to the Trustee pursuant to clause (d)(ii)(D) of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations deposited with the Trustee pursuant to clause (d)(ii)(A) of this Section, and the proceeds of any such Purchase Money Obligations, shall be held by the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.07. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section and obtain the release of the part of such property which constitutes Unfunded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII. In such event, (i) the application of Property Additions in the release under clause (d)(ii)(B) of this Section shall be taken into account in clause (vi) or clause (vii), whichever may be applicable, of the Expert’s Certificate described in clause (c) in Section 8.04 and (ii) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.:
Appears in 1 contract
RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
(b) an Officer’s Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c) an Expert’s Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii) stating the Funded Property Basis of the property to be released; and
(iv) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d) an Officer’s Certificate, substantially in the form attached hereto as Schedule 3, stating:
(i) the amount in cash (the “Cash Deposit Amount”), if any, to be held by the Trustee and constituting Mortgaged Property (and which cash shall then constitute Funded Cash), which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined); and
(ii) indicating one or more, or any combination, of the following property (collectively, the “Cash Deposit Credit Items”), if any, and the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order referred to in clause (a) above of this Section:
(A) the aggregate principal amount of any Purchase Money Obligations delivered to the Trustee, to be held by the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon the property to be released;
(B) the Adjusted Property Additions Basis (or, as provided below in this clause (ii)(B), the Property Additions Basis), of any Property Additions which constitute Unfunded Property described in an Expert’s Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 5.02(b), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis shall be substituted in lieu of the Adjusted Property Additions Basis if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(C) an amount equal to tentwenty-sevenths fifteenths (10/7ths20/15ths) of the aggregate principal amount of Bonds to the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.03, by virtue of compliance with all applicable provisions of Section 5.03 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds and, to such extent, no such Bonds may thereafter be authenticated and delivered under Section 5.03; and any Bonds which were the basis of such right to the authentication and delivery of Bonds so waived shall be deemed to have been made the basis of such release of property; and
(D) an amount equal to tentwenty-sevenths fifteenths (10/7ths20/15ths) of the aggregate principal amount of any Outstanding Bonds delivered to the Trustee.
(e) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s Certificate delivered to the Trustee pursuant to clause (d) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released;
(f) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds under Section 5.03, all documents contemplated below in this Section; and
(g) if the release is on the basis of the delivery to the Trustee of Purchase Money Obligations, as described in clause (d)(ii)(A) in this Section, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in clause (d)(ii)(B) in this Section), the Company shall, subject to the provisions of said clause (d)(ii)(B) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) of Section 5.02(b) as if such Property Additions were to be made the basis of the authentication and delivery of Bonds equal in principal amount to seventy seventy-five percent (7075%) of the Funded Property Basis of that portion of the property to be released, as shown by the Expert’s Certificate required by clause (c) in this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, for all purposes of this Indenture, be deemed to be the Fair Value of the property to be released as stated in the Expert’s Certificate provided for in clause (c) of this Section, (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, in whole or in part, based upon the right to the authentication and delivery of Bonds under Section 5.03 (as described in clause (d)(ii)(C) of this Section), the Company shall, except as hereafter in this paragraph provided, comply with Section 5.03(b) relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.01. If the release of property is, in whole or in part, based upon the delivery to the Trustee of Purchase Money Obligations (as described in clause (d)(ii)(A) of this Section), the Company shall deliver to the Trustee:
(a) an Officer’s Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligations, if any, outstanding thereunder, (ii) reciting the aggregate principal amount of Purchase Money Obligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional Purchase Money Obligations are permitted to be issued; and
(b) an Opinion of Counsel stating that, in the opinion of the signer, (i) such Purchase Money Obligations are valid obligations, (ii) such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon the property to be released, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the lien of this Indenture, (iii) if any Purchase Money Obligations in addition to the Purchase Money Obligations being delivered in connection with such release of property are then outstanding, or are permitted to be issued, under such Purchase Money Lien, (A) that such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 and (B) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided to the Trustee pursuant to clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Company. Any Outstanding Bonds delivered to the Trustee pursuant to clause (d)(ii)(D) of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations deposited with the Trustee pursuant to clause (d)(ii)(A) of this Section, and the proceeds of any such Purchase Money Obligations, shall be held by the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.07. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section and obtain the release of the part of such property which constitutes Unfunded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII. In such event, (i) the application of Property Additions in the release under clause (d)(ii)(B) of this Section shall be taken into account in clause (vi) or clause (vii), whichever may be applicable, of the Expert’s Certificate described in clause (c) in Section 8.04 and (ii) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.
Appears in 1 contract
Samples: Indenture of Mortgage (PG&E Corp)
RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
(b) an Officer’s 's Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c) an Expert’s 's Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii) stating the Funded Property Basis of the property to be released; and
(iv) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d) an Officer’s 's Certificate, substantially in the form attached hereto as Schedule 3, stating:
(i) the amount in cash (the “"Cash Deposit Amount”"), if any, to be held by the Trustee and constituting Mortgaged Property (and which cash shall then constitute Funded Cash), which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined)Items; and
(ii) indicating one or more, or any combination, of the following property (collectively, the “"Cash Deposit Credit Items”"), if any, and the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order referred to in clause (a) above of this Section:
(A) the aggregate principal amount of any Purchase Money Obligations delivered to the Trustee, to be held by the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon the property to be released;
(B) the Adjusted Property Additions Basis (or, as provided below in this clause (ii)(B), the Property Additions Basis), of any Property Additions which constitute Unfunded Property described in an Expert’s 's Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 5.02(b), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis shall be substituted in lieu of the Adjusted Property Additions Basis if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(C) an amount equal to ten-sevenths one hundred fifty percent (10/7ths150%) of the aggregate principal amount of Bonds to the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.03, by virtue of compliance with all applicable provisions of Section 5.03 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds and, to such extent, no such Bonds may thereafter be authenticated and delivered under Section 5.03; and any Bonds which were the basis of such right to the authentication and delivery of Bonds so waived shall be deemed to have been made the basis of such release of property; and
(D) an amount equal to ten-sevenths one hundred fifty percent (10/7ths150%) of the aggregate principal amount of any Outstanding Bonds delivered to the Trustee.
(e) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s 's Certificate delivered to the Trustee pursuant to clause (d) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released;
(f) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds under Section 5.03, all documents contemplated below in this Section; and
(g) if the release is on the basis of the delivery to the Trustee of Purchase Money Obligations, as described in clause (d)(ii)(A) in this Section, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in clause (d)(ii)(B) in this Section), the Company shall, subject to the provisions of said clause (d)(ii)(B) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) of Section 5.02(b) as if such Property Additions were to be made the basis of the authentication and delivery of Bonds equal in principal amount to seventy sixty-six and two-thirds percent (70662/3%) of the Funded Property Basis of that portion of the property to be released, as shown by the Expert’s 's Certificate required by clause (c) in this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, for all purposes of this Indenture, be deemed to be the Fair Value of the property to be released as stated in the Expert’s 's Certificate provided for in clause (c) of this Section, (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s 's Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s 's Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, in whole or in part, based upon the right to the authentication and delivery of Bonds under Section 5.03 (as described in clause (d)(ii)(C) of this Section), the Company shall, except as hereafter in this paragraph provided, comply with Section 5.03(b) relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.01. If the release of property is, in whole or in part, based upon the delivery to the Trustee of Purchase Money Obligations (as described in clause (d)(ii)(A) of this Section), the Company shall deliver to the Trustee:
(a) an Officer’s 's Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligations, if any, outstanding thereunder, (ii) reciting the aggregate principal amount of Purchase Money Obligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional Purchase Money Obligations are permitted to be issued; and
(b) an Opinion of Counsel stating that, in the opinion of the signer, (i) such Purchase Money Obligations are valid obligations, (ii) such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon the property to be released, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens prior to the lien of this Indenture, (iii) if any Purchase Money Obligations in addition to the Purchase Money Obligations being delivered in connection with such release of property are then outstanding, or are permitted to be issued, under such Purchase Money Lien, (A) that such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 and (B) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided to the Trustee pursuant to clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Company. Any Outstanding Bonds delivered to the Trustee pursuant to clause (d)(ii)(D) of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations deposited with the Trustee pursuant to clause (d)(ii)(A) of this Section, and the proceeds of any such Purchase Money Obligations, shall be held by the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.07. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section and obtain the release of the part of such property which constitutes Unfunded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII. In such event, (i) the application of Property Additions in the release under clause (d)(ii)(B) of this Section shall be taken into account in clause (vi) or clause (vii), whichever may be applicable, of the Expert’s 's Certificate described in clause (c) in Section 8.04 and (ii) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.
Appears in 1 contract
Samples: Indenture of Mortgage (Pg&e Corp)
RELEASE OF FUNDED PROPERTY. Unless an Event of Default shall have occurred and be continuing, the Company may obtain the release of any part of the Mortgaged Property, or any interest therein, which constitutes Funded Property, and the Trustee shall release all its right, title and interest in and to the same from the lien hereof, upon receipt by the Trustee of:
(a) a Company Order requesting the release of such property and transmitting therewith a form of instrument to effect such release;
(b) an Officer’s Certificate stating that, to the knowledge of the signer, no Event of Default has occurred and is continuing;
(c) an Expert’s Certificate made and dated not more than ninety (90) days prior to the date of such Company Order, substantially in the form attached hereto as Schedule 2:
(i) describing the property to be released;
(ii) stating the Fair Value, in the judgment of the signers, of the property to be released;
(iii) stating the Funded Property Basis Cost of the property to be releasedreleased (or, if the Fair Value to the Company of such property at the time the same became Funded Property was certified to be an amount less than the Cost thereof, then such Fair Value, as so certified, in lieu of Cost); and
(iv) stating that, in the judgment of the signers, such release will not impair the security under this Indenture in contravention of the provisions hereof;
(d) an Officer’s Certificate, substantially in the form attached hereto as Schedule 3, stating:
(i) the amount in cash (the “Cash Deposit Amount”), if any, to be held by the Trustee and constituting as part of the Mortgaged Property (and which cash shall then constitute Funded Cash)Property, which Cash Deposit Amount shall be equal to the difference between (A) the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released, and (B) the aggregate amount of the Cash Deposit Credit Items (as hereinafter defined); and
(ii) indicating one or more, or any combination, of the following property (collectively, the “Cash Deposit Credit Items”)amount, if any, and by which 60% of the amounts thereof, which together with the Cash Deposit Amount, if any, to be deposited with the Trustee shall form the basis for the release of property requested in the Company Order amount referred to in clause (ac)(iii) above exceeds the aggregate of this Sectionthe following items:
(Ai) an amount equal to 100% of the aggregate principal amount of any Purchase Money Obligations delivered Cost or Fair Value to the Trustee, to be held by the Trustee and constituting Mortgaged Property, which are secured by Purchase Money Liens upon the property to be released;
Company (B) the Adjusted Property Additions Basis (or, as provided below in this clause (ii)(Bwhichever is less), the Property Additions Basis)after making any deductions and any additions pursuant to Section 1.3, of any Property Additions which constitute Unfunded not constituting Funded Property described in an Expert’s Certificate, dated not more than ninety (90) days prior to the date of the Company Order requesting such release and complying with clause (ii) and, to the extent applicable, clause (iii) in Section 5.02(b4.2(b), delivered to the Trustee; provided, however, that for purposes of the above, the Property Additions Basis deductions and additions contemplated by Section 1.3 shall not be substituted in lieu of the Adjusted Property Additions Basis required to be made if such Property Additions were acquired, made or constructed on or after the ninetieth (90th) day preceding the date of such Company Order;
(Cii) an amount equal to ten-sevenths (10/7ths) of the aggregate principal amount of Bonds to Securities for which the authentication and delivery of which the Company shall be entitled under the provisions of Section 5.034.3, by virtue of compliance with all applicable provisions of Section 5.03 4.3 (except as hereinafter in this Section otherwise provided); provided, however, that such release shall operate as a waiver by the Company of the right to the authentication and delivery of such Bonds Securities and, to such extent, no such Bonds Securities may thereafter be authenticated and delivered under Section 5.03hereunder; and any Bonds Securities which were the basis of such right to the authentication and delivery of Bonds Securities so waived shall be deemed to have been made the basis of such release of property; and;
(Diii) an any amount equal to ten-sevenths in cash;
(10/7thsiv) of the aggregate principal amount of any Outstanding Bonds Securities delivered to the Trustee.; and
(ev) the Cash Deposit Amount and the Cash Deposit Credit Items stated in such Officer’s Certificate delivered to the Trustee pursuant to clause (d) of this Section, which in the aggregate shall be at least equal to the Funded Property Basis of the property to be released, less any taxes and expenses incidental to any sale, exchange, dedication or other disposition of the property to be released;
(e) an Opinion of Counsel that any approval of the BPU required for the release of such property has been obtained; and
(f) if the release is on the basis of Property Additions or on the basis of the right to the authentication and delivery of Bonds Securities under Section 5.034.3, all documents contemplated below in this Section; and
(g) if the release is on the basis of the delivery to the Trustee of Purchase Money Obligations, as described in clause (d)(ii)(A) in this Section, all documents contemplated below in this Section, to the extent required. If and to the extent that the release of property is, in whole or in part, based upon Property Additions (as described in permitted under the provisions of clause (d)(ii)(Bd)(i) in the first paragraph of this Section), the Company shall, subject to the provisions of said clause (d)(ii)(Bd)(i) and except as hereafter in this paragraph provided, comply with clauses (ii) through (v) all applicable provisions of Section 5.02(b) this Indenture as if such Property Additions were to be made the basis of the authentication and delivery of Bonds Securities equal in principal amount to seventy percent (70%) 60% of the Cost (or, as to property of which the Fair Value to the Company at the time the same became Funded Property Basis was certified to be an amount less than the Cost thereof, such Fair Value, as so certified, in lieu of Cost) of that portion of the property to be releasedreleased which is to be released on the basis of such Property Additions, as shown by the Expert’s Certificate required by clause (c) in the first paragraph of this Section, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds; provided, however, that the Cost of any Property Additions received or to be received by the Company in whole or in part as consideration in exchange for the property to be released shall, shall for all purposes of this Indenture, Indenture be deemed to be the Fair Value of the property to be released as amount stated in the Expert’s Certificate provided for in clause (c) in the first paragraph of this Section, Section to be the Fair Value of the property to be released (x) plus the amount of any cash and the fair market value of any other consideration, further to be stated in such Expert’s Certificate, paid and/or delivered or to be paid and/or delivered by, and the amount of any obligations assumed or to be assumed by, the Company in connection with such exchange as additional consideration for such Property Additions and/or (y) less the amount of any cash and the fair market value of any other consideration, which shall also be stated in such Expert’s Certificate, received or to be received by the Company in connection with such exchange in addition to such Property Additions. Notwithstanding the foregoing, in no event shall the Company be required to deliver the documents specified in Section 5.01. Any Property Additions which have become the basis for the release of Funded Property pursuant to this Section shall constitute Funded Property. If and to the extent that the release of property is, is in whole or in part, part based upon the right to the authentication and delivery of Bonds Securities under Section 5.03 4.3 (as described in permitted under the provisions of clause (d)(ii)(Cd)(ii) in the first paragraph of this Section), the Company shall, except as hereafter in this paragraph provided, comply with all applicable provisions of Section 5.03(b) 4.3 relating to such authentication and delivery, but recognizing that the action to be taken is the release of property rather than the authentication and delivery of Bonds. Notwithstanding the foregoing provisions of this paragraph, in no event shall the Company be required to deliver the documents specified in Section 5.01. If the release of property is, in whole or in part, based upon the delivery to the Trustee of Purchase Money Obligations (as described in clause (d)(ii)(A) of this Section), the Company shall deliver to the Trustee:4.1.
(a) an Officer’s Certificate (i) stating that no event has occurred and is continuing which entitles the holder of the Purchase Money Lien securing such Purchase Money Obligations to accelerate the maturity of the Purchase Money Obligations, if any, outstanding thereunder, (ii) reciting the aggregate principal amount of Purchase Money Obligations, if any, then outstanding thereunder in addition to the Purchase Money Obligations then being delivered in connection with the release of such property and the terms and conditions, if any, on which additional Purchase Money Obligations are permitted to be issued; and
(b) an Opinion of Counsel stating that, in the opinion of the signer, (i) such Purchase Money Obligations are valid obligations, (ii) such Purchase Money Lien constitutes, or, upon the taking of the actions specified in such opinion, will constitute, a Lien upon the any property to be released, subject, released from the lien of this Indenture under any provision of this Article (other than Section 8.7) is subject to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and such Liens, if any, as shall have existed thereon immediately prior to such release as Liens a lien prior to the lien hereof and is to be sold, exchanged, dedicated or otherwise disposed of subject to such prior lien and (b) after such release, such prior lien will not be a lien on any property subject to the lien hereof, then the Fair Value of such property to be released shall be deemed, for all purposes of this Indenture, (iii) if any Purchase Money Obligations in addition to the Purchase Money Obligations being delivered in connection with such release of property are then outstanding, or are permitted to be issued, under the value thereof unencumbered by such Purchase Money Lien, (A) that such Purchase Money Lien constitutes, or, upon prior lien less the taking principal amount of the actions specified in indebtedness secured by such opinion, will constitute, a Lien upon all other property, if any, purporting to be subject thereto, subject, to the knowledge of such counsel, to no Lien prior thereto except Liens generally of the character of Permitted Liens and Liens permitted to exist or to be hereafter created under Section 7.06 and (B) that the terms of such Purchase Money Lien, as then in effect, do not permit the issuance of Purchase Money Obligations thereunder except on the basis of property generally of the character of Property Additions, the retirement or deposit of outstanding Purchase Money Obligations, the deposit of prior Lien obligations or the deposit of cash. If the Opinion of Counsel provided to the Trustee pursuant to clause (b) above is conditioned upon the filing and/or recording of any instruments of conveyance, assignment or transfer, the Company shall promptly cause such instruments to be filed and/or recorded in the proper places and manner and shall deliver to the Trustee evidence of such filing and/or recording promptly upon receipt of such evidence by the Companylien. Any Outstanding Bonds Securities delivered to the Trustee pursuant to clause (d)(ii)(Dd) in the first paragraph of this Section shall forthwith be canceled by the Trustee. Any cash and/or Purchase Money Obligations obligations so deposited with the Trustee pursuant to clause (d)(ii)(A) of this SectionTrustee, and the proceeds of any such Purchase Money Obligationsobligations, shall be held by as part of the Trustee and constitute Mortgaged Property and shall be withdrawn, released, used or applied in the manner, to the extent and for the purposes, and subject to the conditions, provided in Section 8.078.6. Anything in this Indenture to the contrary notwithstanding, if property to be released constitutes Funded Property in part only, the Company shall obtain the release of the part of such property which constitutes Funded Property under this Section 8.3 and obtain the release of the part of such property which constitutes Unfunded does not constitute Funded Property under Section 8.04; provided, that the foregoing shall not preclude the release of such property under any other applicable Section of this Article VIII8.4. In such event, (ia) the application of Property Additions in the release under this Section 8.3 as contemplated in clause (d)(ii)(Bd)(i) of this Section in the first paragraph hereof shall be taken into account in clause (viv) or clause (viivi), whichever may be applicable, of the Expert’s Certificate described in clause (c) in Section 8.04 8.4 and (iib) the Trustee shall, at the election of the Company, execute and deliver a separate instrument of release with respect to the property released under each of such Sections or a consolidated instrument of release with respect to the property released under both of such Sections considered as a whole. To the extent that only a portion of any Funded Property is to be released under this Section 8.03, the Company shall be entitled to make an allocation of the Funded Property Basis between that portion of the Funded Property being released and that portion of the Funded Property remaining subject to the lien of this Indenture on any reasonable basis as may be determined by the Company.
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