Withdrawals of Insurance Proceeds and Condemnation Awards. Trust Moneys from time to time held in the Asset Sale Proceeds Account, and representing the Net Cash Proceeds of a Casualty Event (or investment earnings upon such Net Cash Proceeds), may be withdrawn by the Issuer and shall be paid by the Trustee to reimburse the Issuer for expenditures made, or to pay costs incurred, by the Issuer or the Restricted Subsidiary that was the subject of such Casualty Event to repair, rebuild or replace the Property destroyed, damaged or taken, upon receipt by the Trustee of the following: (a) an Officers’ Certificate dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forth: (i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer or the applicable Subsidiary in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary at the date of the acquisition thereof by the Issuer or such Credit Party; (ii) that no part of such expenditures or costs, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.03; (iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account; (iv) that there is no outstanding Indebtedness or other obligation, other than costs for which payment is being requested, known to the Issuer, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s, mechanics’, laborer’s, materialmen’s statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement; (v) that the Property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s or the applicable Subsidiary’s business; (vi) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived; (vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and (viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and (b) an Opinion of Counsel substantially stating: (i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and (ii) that the Global Security Agreement or the other Security Document, if any, will create a valid security interest in such repairs, rebuildings or replacements. Upon compliance with the foregoing provisions of this Section 9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof of such repairs, rebuildings and replacements stated in such Officers’ Certificate, whichever is less.
Appears in 1 contract
Samples: Indenture (Global Crossing LTD)
Withdrawals of Insurance Proceeds and Condemnation Awards. Subject to the provisions of the Intercreditor Agreement and the Collateral Documents, to the extent that any Trust Moneys consist of either (i) any Net Proceeds from time to time held in the an Asset Sale or (ii) any Net Proceeds Accountfrom a taking or pursuant to the exercise by the United States of America or any state, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company and shall be paid by the Trustee upon a request by the Company to reimburse the Issuer Company for expenditures made, or to pay costs incurred, by the Issuer or the Restricted Subsidiary that was the subject of such Casualty Event Indenture Company to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate of the Company, dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forthMoneys:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer or the applicable Subsidiary Company in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary Company at the date of the acquisition expenditure or incurrence thereof by the Issuer or such Credit PartyCompany;
(ii) that no part of such expenditures or costs, in any previous or then pending application, costs has been or is being made the basis for the withdrawal of any Trust Moneys in any previous or then pending application pursuant to this Section 9.0313.02;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the Issuer, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’svendors', mechanics’', laborer’slaborers', materialmen’s 's, statutory or other similar Lien upon any of such repairs, rebuildings or replacementreplacements, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacementreplacements;
(viv) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's business;
(v) whether any part of such repairs, rebuildings or replacements within six months before the applicable Subsidiary’s businessdate of acquisition thereof by the Company has been used or operated by any person other than the Company in a business similar to that in which such property has been or is to be used or operated by the Company, and whether the fair value to the Company, at the date of such acquisition, of such part of such repairs, rebuildings or replacement equals or exceeds the greater of (i) $25,000 and (ii) 1% of the aggregate principal amount of the outstanding Senior Notes and, if all of such facts are present, such part of said repairs, rebuildings or replacements shall be separately described and it shall be stated that an independent appraiser's or independent financial adviser's certificate as to the fair value to the Company of such separately described repairs, rebuildings or replacements will be furnished under paragraph (b) of this Section 13.02;
(vi) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viiivii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; andIndenture
(b) all documentation required under TIA Section 314(d);
(i) In case any part of such repairs, rebuildings or replacements constitutes Real Property:
(1) with respect to any such repairs, rebuildings or replacements that are not encompassed within or are not erected upon Mortgaged Property, an instrument or instruments in recoverable form sufficient for the Lien of this Indenture and any mortgage to cover such repairs, rebuildings or replacements which, if such repairs, rebuildings or replacements include leasehold or easement interests, shall include normal and customary provisions with respect thereto and evidence of the filing of all such documents as may be necessary to perfect such Liens;
(2) a policy of title insurance (or a commitment to issue title insurance) insuring that the Lien of this Indenture and any Mortgage constitutes a direct and valid and perfected mortgage Lien on such repairs, rebuildings or replacements in an aggregate amount equal to the fair value of such repairs, rebuildings or replacements, together with such endorsements and other opinions as are contemplated in Section 12.02(b), or with respect to any such repairs, rebuildings or replacements that are encompassed within or erected upon Mortgaged Property an endorsement to the title insurance policy issued pursuant to Section 12.02(b) regarding the affected Mortgaged Property confirming that such repairs, rebuildings or replacements are encumbered by the Lien of the applicable Mortgage;
(3) in the event that such repairs, rebuildings or replacements have a fair value in excess of $250,000, a survey with respect thereto; and
(4) evidence of payment or a closing statement indicating payments to be made by the Company of all title premiums, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Trustee (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings or replacements to the Lien of any applicable Collateral Document and to perfect such Lien; and
(ii) in case any part of such repairs, rebuildings or replacements constitutes personal property interests:
(1) an instrument in recoverable form sufficient for the Lien of the Security Agreement to cover such repairs, rebuildings or replacements; and
(2) evidence of payment or a closing statement indicating payments to be made by the Company of all filing fees, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of Indenture counsel for the Trustee (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings or replacements to the Lien of any Collateral Document; and
(d) an Opinion of Counsel Counsel, subject to customary qualifications, substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Collateral Documents, and that, upon the basis of such request by of the Issuer Company and the accompanying documents specified in this Section 9.0313.02, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and, and the Trust Moneys whose withdrawal is then requested may be lawfully paid over under this Section 13.02;
(ii) that the Global Security Agreement Company has acquired title to said repairs, rebuildings and replacements at least equivalent to its title to the property destroyed, damaged or taken, and that the other Security Documentsame and every part thereof are free and clear of all Liens prior to the Lien of any Collateral Documents, if anyexcept Liens of the type permitted under the applicable Collateral Document to which the property so destroyed, will create a valid security damaged or taken shall have been subject at the time of such destruction, damage or taken;
(iii) that all of the Company's right, title and interest in such and to said repairs, rebuildings or replacements, or combination thereof, are then subject to the Lien of the Collateral Documents. Upon compliance with the foregoing provisions of this Section 9.03, the 13.02,the Trustee shall pay on Issuer Request the written request of the Company an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ ' Certificate delivered pursuant to required by clause (i) of subsection(a) of this Section 9.03(a) hereof13.02, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof Company of such repairs, rebuildings and replacements stated in such Officers’ Certificate' Certificate (or in such independent appraiser's or independent financial advisor's certificate, whichever if required),whichever is less.
Appears in 1 contract
Samples: Indenture (Goodman Conveyor Co)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys from time consist of either (a) the proceeds of insurance upon any part of the Collateral or (b) any award for or the proceeds of any of the Collateral being taken by eminent domain or sold pursuant to time held in the Asset Sale Proceeds Accountexercise by the United States of America or any state, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company or any Guarantor, as applicable, and shall be paid by the Trustee Collateral Agent upon a request by the Company or the applicable Guarantor by the proper officer or officers of the Company or the applicable Guarantor to reimburse the Issuer Company or the applicable Guarantor for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted Subsidiary that was the subject of such Casualty Event applicable Guarantor to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee and the Collateral Agent of the following:
(a) an Officers’ ' Certificate of the Company or the applicable Guarantor dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and (if required by the TIA) signed also also, in the case of the following clauses (i), (iv) and (vi), by an Independent contractorAppraiser or Independent Financial Advisor, setting forth:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer Company or the applicable Subsidiary Guarantor in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value Fair Market Value thereof to the Issuer Company or such Subsidiary the applicable Guarantor at the date of the acquisition thereof by the Issuer Company or the applicable Guarantor, except that it shall not be necessary under this clause (i) to state the fair value of any such Credit Partyrepairs, rebuildings or replacements that are separately described pursuant to clause (vi) of this paragraph (a) and whose Fair Market Value is stated in the Independent Appraiser's or Independent Financial Advisor's certificate under paragraph (b) of this Section 12.3;
(ii) that no part of such expenditures or costs, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.0312.03;
(iii) that no part of such expenditure expenditures or costs has been paid out of either the proceeds of insurance upon any part of the Collateral not required to be paid to the Collateral Agent under the relevant Mortgage or any award for or the proceeds from any of the Collateral being taken not required to be paid into to the Asset Sale Proceeds AccountCollateral Agent under Section 11.05, as the case may be;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the IssuerCompany or the applicable Guarantor, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s's, mechanics’', laborer’slaborers' materialmen's, materialmen’s statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(v) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's or the applicable Subsidiary’s Guarantor's business;
(vi) whether any part of such repairs, rebuildings or replacements within six months before the date of acquisition thereof by the Company or the applicable Guarantor, has been used or operated by others than the Company or the applicable Guarantor in a business similar to that in which such property has been or is to be used or operated by the Company or the applicable Guarantor, and whether the Fair Market Value to the Company or the applicable Guarantor, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $25,000 and 1% of the aggregate principal amount of the outstanding Securities; and, if all of such facts are present, such part of said repairs, rebuildings or replacements shall be separately described, and it shall be stated that an Independent Appraiser's or Independent Financial Advisor's certificate as to the Fair Market Value to the Company or the ap- plicable Guarantor of such separately described repairs, rebuildings or replacements will be furnished under paragraph (b) of this Section 12.3;
(vii) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with.
(b) In case any part of such repairs, rebuildings or replacements is separately described pursuant to the foregoing clause (vi) of paragraph (a) of this Section 12.03, a certificate of an Independent Appraiser or Independent Financial Advisor (if required by the TIA) stating the Fair Market Value to the Company or the applicable Guarantor, in such Independent Appraiser's or Independent Financial Advisor's opinion, of such separately described repairs, rebuildings or replacements at the date of the acquisition thereof by the Company or the applicable Guarantor.
(i) In case any part of such repairs, rebuildings or replacements constitutes Real Property:
(1) with respect to any such repairs, rebuildings or replacements that are not encompassed within or are not erected upon Mortgaged Property, an instrument or instruments in recordable form sufficient for the Lien of this Indenture and any Mortgage to cover such repairs, rebuildings or replacements which, if such repairs, rebuildings or replacements include leasehold or easement interests, shall include normal and customary provisions with respect thereto and evidence of the filing of all such documents as may be necessary to perfect such Liens;
(2) a policy of title insurance (or a commitment to issue title insurance) insuring that the Lien of this Indenture and any Mortgage (other than the Mortgage executed and delivered in respect of the Mortgaged Property located in Canada) constitutes a direct and valid and perfected mortgage Lien on such repairs, rebuildings or replacements (subject to no Prior Liens other than Prior Liens which were permitted with respect to the Collateral repaired, rebuilt or replaced) in an aggregate amount equal to the Fair Market Value of such repairs, rebuildings or replacements, together with such endorsements and other opinions as are contemplated by Section 11.2(b)(ii), or with respect to any such repairs, rebuildings or replacements that are encompassed within or are erected upon Mortgaged Property (other than Mortgaged Property located in Canada) an endorsement to the title insurance policy issued pursuant to Section 11.02(b)(ii) regarding the affected Mortgaged Property confirming that such repairs, rebuildings or replacements are encumbered by the Lien of the applicable Mortgage (subject to no Prior Liens other than Prior Liens which were permitted under the Mortgage with respect to the Collateral repaired, rebuilt or replaced) or, with respect to any such repairs, rebuildings or replacements that are encompassed within or erected upon Mortgaged Property located in Canada, a title Opinion of Counsel in form and substance satisfactory to the Collateral Agent;
(3) in the event such repairs, rebuildings or replacements have a Fair Market Value in excess of $250,000, a Survey with respect thereto; and
(b4) an Opinion evidence of Counsel substantially stating:
payment or a closing statement indicating payments to be made by the Company or the applicable Guarantor of all title premiums, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Collateral Agent (i) and any local counsel), that the instruments that have been may be incurred to validly and effectively subject such repairs, rebuildings or are therewith delivered replacements to the Trustee conform Lien of any applicable Security Document to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of perfect such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied withLien; and
(ii) that in case any part of such repairs, rebuildings or replacements constitutes personal property interests:
(1) an instrument in recordable form sufficient for the Global Lien of any applicable Security Agreement or the other Security Document, if any, will create a valid security interest in Document to cover such repairs, rebuildings or replacements. Upon compliance with ; and
(2) evidence of payment or a closing statement indicating payments to be made by the foregoing provisions of this Section 9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof, or the fair value to the Issuer Company or the applicable Restricted Subsidiary thereof Guarantor of all filing fees, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Collateral Agent (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings and or replacements stated in such Officers’ Certificate, whichever is lessto the Lien of any Security Document.
Appears in 1 contract
Samples: Indenture (Rti Capital Corp)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys from time consist of either (a) the proceeds of insurance upon any part of the Collateral or (b) any award for or the proceeds of any of the Collateral being taken by eminent domain or sold pursuant to time held in the Asset Sale Proceeds Accountexercise by the United States of America or any state, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company and shall be paid by the Trustee Collateral Agent upon a request by the Company by the proper officer or officers of the Company to reimburse the Issuer Company or a Guarantor for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted Subsidiary that was the subject of such Casualty Event a Guarantor to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee Collateral Agent of the following:
(a) an Officers’ ' Certificate of the Company dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and (if required by the TIA) signed also in the case of the following clauses (i), (iv) and (vi), by an Independent contractorAppraiser or Financial Advisor, setting forth:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer Company or the applicable Subsidiary a Guarantor in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer Company or such Subsidiary a Guarantor at the date of the acquisition thereof by the Issuer Company or a Guarantor, except that it shall not be necessary under this clause (i) to state the fair value of any such Credit Partyrepairs, rebuildings or replacements that are separately described pursuant to clause (vi) of this paragraph (a) and whose fair value is stated in the Independent Appraiser's or Independent Financial Advisor's certificate under paragraph (b) of this Section 12.3;
(ii) that no part of such expenditures or costs, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.0312.3;
(iii) that no part of such expenditure expenditures or costs has been paid out of either the proceeds of insurance upon any part of the Collateral not required to be paid to the Collateral Agent under the relevant Mortgage or any award for or the proceeds from any of the Collateral being taken not required to be paid into to the Asset Sale Proceeds AccountCollateral Agent under Section 12.5, as the case may be;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the IssuerCompany, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s's, mechanics’', laborer’slaborers' materialmen's, materialmen’s statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(v) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s or the applicable Subsidiary’s Company's business;
(vi) whether any part of such repairs, rebuildings or replacements within six months before the date of acquisition thereof by the Company or a Guarantor, has been used or operated by others than the Company or a Guarantor in a business similar to that in which such property has been or is to be used or operated by the Company or a Guarantor, and whether the fair value to the Company or a Guarantor, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $100,000 and 1% of the aggregate principal amount of the outstanding Securities; and, if all of such facts are present, such part of said repairs, rebuildings or replacements shall be separately described, and it shall be stated that an Independent Appraiser's or Independent Financial Advisor's certificate as to the fair value to the Company or a Guarantor of such separately described repairs, rebuildings or replacements will be furnished under paragraph (b) of this Section 12.3;
(vii) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(b) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(ii) that the Global Security Agreement or the other Security Document, if any, will create a valid security interest in such repairs, rebuildings or replacements. Upon compliance with the foregoing provisions of this Section 9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof of such repairs, rebuildings and replacements stated in such Officers’ Certificate, whichever is less.
Appears in 1 contract
Withdrawals of Insurance Proceeds and Condemnation Awards. Subject to the provisions of the Collateral Documents, to the extent that any Trust Moneys from time consist of either (i) any Net Proceeds or (ii) any Net Award or the proceeds for any of the Collateral subject to time held in a Taking sold pursuant to the Asset Sale Proceeds Accountexercise by the United States of America or any state, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company and shall be paid by the Trustee upon a request by a Company Order to reimburse the Issuer Company for expenditures made, or to pay costs incurred, by the Issuer or the Restricted Subsidiary that was the subject of such Casualty Event Company to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate of the Company, dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forthMoneys:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer or the applicable Subsidiary Company in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary Company at the date of the acquisition expenditure or incurrence thereof by the Issuer or such Credit PartyCompany;
(ii) that no part of such expenditures or costs, in any previous or then pending application, costs has been or is being made the basis for the withdrawal of any Trust Moneys in any previous or then pending application pursuant to this Section 9.0311.02;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the Issuer, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’svendors', mechanics’', laborer’slaborers', materialmen’s 's, statutory or other similar Lien upon any of such repairs, rebuildings or replacementreplacements, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacementreplacements;
(viv) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's business;
(v) whether any part of such repairs, rebuildings or replacements within six months before the applicable Subsidiary’s businessdate of acquisition thereof by the Company has been used or operated by any person other than the Company in a business similar to that in which such property has been or is to be used or operated by the Company, and whether the fair value to the Company, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $25,000, and 1% of the aggregate principal amount of the outstanding Securities and, if all of such facts are present, such part of said repairs, rebuildings or replacements shall be separately described and it shall be stated that an Appraiser's or Independent Financial Adviser's certificate as to the fair value to the Company of such separately described repairs, rebuildings or replacements will be furnished under paragraph (b) of this Section 11.02;
(vi) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viiivii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with;
(b) all documentation required under TIA ss. 314(d);
(i) In case any part of such repairs, rebuildings or replacements constitutes Real Property:
(1) with respect to any such repairs, rebuildings or replacements that are not encompassed within or are not erected upon Mortgaged Property, an instrument or instruments in recoverable form sufficient for the Lien of this Indenture and any mortgage to cover such repairs, rebuildings or replacements which, if such repairs, rebuildings or replacements include leasehold or easement interests, shall include normal and customary provisions with respect thereto and evidence of the filing of all such documents as may be necessary to perfect such Liens;
(2) a policy of title insurance (or a commitment to issue title insurance) insuring that the Lien of this Indenture and any Mortgage constitutes a direct and valid and perfected mortgage Lien (of the priority contemplated in Section 10.01(a) hereof) on such repairs, rebuildings or replacements in an aggregate amount equal to the fair value of such repairs, rebuildings or replacements, together with such endorsements and other opinions as are contemplated in Section 10.02(b), or with respect to any such repairs, rebuildings or replacements that are encompassed within or erected upon Mortgaged Property an endorsement to the title insurance policy issued pursuant to Section 10.02(b) regarding the affected Mortgaged Property confirming that such repairs, rebuildings or replacements are encumbered by the Lien of the applicable Mortgage;
(3) in the event that such repairs, rebuildings or replacements have a fair value in excess of $250,000, a Survey with respect thereto; and
(b4) evidence of payment or a closing statement indicating payments to be made by the Company of all title premiums, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Trustee (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings or replacements to the Lien of any applicable Collateral Document and to perfect such Lien; and
(ii) in case any part of such repairs, rebuildings or replacements constitutes personal property interests:
(1) an instrument in recoverable form sufficient for the Lien of the Security Agreement to cover such repairs, rebuildings or replacements; and
(2) evidence of payment or a closing statement indicating payments to be made by the Company of all filing fees, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Trustee (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings or replacements to the Lien of any Collateral Document; and
(d) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Collateral Documents, and that, upon the basis of such request by of the Issuer Company and the accompanying documents specified in this Section 9.0311.02, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and, and the Trust Moneys whose withdrawal is then requested may be lawfully paid over under this Section 11.02;
(ii) that the Global Security Agreement Company has acquired title to said repairs, rebuildings and replacements at least equivalent to its title to the property destroyed, damaged or taken, and that the other Security Documentsame and every part thereof are free and clear of all Liens prior to the Lien of any Collateral Documents, if anyexcept Liens of the type permitted under the applicable Collateral Document to which the property so destroyed, will create a valid security damaged or taken shall have been subject at the time of such destruction, damage or taken;
(iii) that all of the Company's right, title and interest in such and to said repairs, rebuildings or replacements, or combination thereof, are then subject to the Lien of the Collateral Documents. Upon compliance with the foregoing provisions of this Section 9.0311.02, the Trustee shall pay on Issuer Request the written request of the Company an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ ' Certificate delivered pursuant to required by clause (i) of subsection (a) of this Section 9.03(a) hereof11.02, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof Company of such repairs, rebuildings and replacements stated in such Officers’ Certificate' Certificate (or in such Appraiser's or Independent Financial Advisor's certificate, if required), whichever is less.
Appears in 1 contract
Samples: Indenture (Wci Steel Inc)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys consist of either (a) the proceeds of insurance upon any part of the Mortgaged Collateral or (b) any award for or the proceeds from time any of the Collateral being taken by eminent domain, expropriation or other similar governmental taking (including a requisition for hire which is not revoked within six months (and in all events prior to time held in July 15, 2005) or a requisition for title) or sold pursuant to the Asset Sale Proceeds Accountexercise by any governmental authority of any right which it may then have to purchase, and representing or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company or the applicable Subsidiary Guarantor and shall be paid by the Trustee upon a request by the Company to the Trustee by the proper officer or officers of the Company or the applicable Subsidiary Guarantor to reimburse the Issuer Company or the applicable Subsidiary Guarantor for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted applicable Subsidiary that was the subject of such Casualty Event Guarantor to repair, rebuild or replace the Property property destroyed, damaged or takentaken (including the acquisition of a Qualified Substitute Vessel), upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i), (iv) and (vi), by an Independent contractorAppraiser, setting forth:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously simultaneous with such withdrawal of Trust Moneys, by the Issuer Company or the applicable Subsidiary Guarantor in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the CollateralMortgaged Collateral (including the acquisition of a Qualified Substitute Vessel), which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary Company at the date of the acquisition acquisi tion thereof by the Issuer Company, except that it shall not be necessary under this paragraph to state the fair value of any of such repairs, rebuildings or such Credit Partyreplacements that are separately described pursuant to paragraph (vi) of this subsection and whose fair value is stated in the Appraiser's certificate under the following subsection (b) of this Section;
(ii) that no part of such expenditures or costsexpenditures, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.0313.03;
(iii) that no part of such expenditure expenditures or costs has been paid out of either the proceeds of insurance upon any part of the Mortgaged Collateral not required to be paid to the Trustee or the Collateral Agent, as appropriate, under the Mortgage or any award for or the proceeds from any of the Mortgaged Collateral being taken not required to be paid into to the Asset Sale Proceeds AccountTrustee or the Collateral Agent under Section 12.05 hereof, as the case may be;
(iv) that there is no outstanding Indebtedness indebtedness or other obligation, other than costs for which payment is being requested, known to the IssuerCompany, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s's, mechanics’', laborer’s's, materialmen’s 's, statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(v) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's or the applicable Subsidiary’s Subsidiary Guarantors' business;
(vi) whether any part of such repairs, rebuild ings or replacements, within six months before the date of acquisition thereof by the Company or a Subsidiary Guarantor, has been used or operated by others other than the Company or a Subsidiary Guarantor in a business similar to that in which such property has been or is to be used or operated by the Company or a Subsidiary Guarantor, and whether the fair value to the Company or a Subsidiary Guarantor, at the date of such acquisi tion, of such part of such repairs, rebuildings or replacement is at least $100,000 and 1% of the aggregate principal amount at maturity of the out standing Securities; and, if all such facts are present, such part of said repairs, rebuildings or replacements shall be separately described, and it shall be stated that an Appraiser's certificate as to the fair value to the Company of such separately described repairs, rebuildings or replacements will be furnished under the following subsection (b) of this Section 13.03;
(vii) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(viiviii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property property destroyed, damaged or taken; and
(viiiix) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and.
(b) an Opinion In case any part of Counsel substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(ii) that the Global Security Agreement or the other Security Document, if any, will create a valid security interest in such repairs, rebuildings or replacements. Upon compliance with replacements is separately described pursuant to the foregoing provisions paragraph (vi) of subsection (a) of this Section 9.03Section, the Trustee shall pay on Issuer Request a certificate of an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof, or Appraiser stating the fair value to the Issuer Company or the applicable Restricted Subsidiary thereof Guarantors, in such Appraiser's opinion, of such separately described repairs, rebuildings and or replacements stated in such Officers’ Certificate, whichever is lessat the date of the acquisition thereof by the Company or the Subsidiary Guarantors.
Appears in 1 contract
Withdrawals of Insurance Proceeds and Condemnation Awards. Subject to the provisions of the Collateral Documents, to the extent that any Trust Moneys from time consist of either (i) any Net Proceeds or (ii) any Net Award or the proceeds for any of the Collateral subject to time held in a Taking sold pursuant to the Asset Sale Proceeds Accountexercise by the United States of America or any State, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company and shall be paid by the Trustee upon a request by a Company Order to reimburse the Issuer Company for expenditures made, or to pay costs incurred, by the Issuer or the Restricted Subsidiary that was the subject of such Casualty Event Company to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ Certificate of the Company, dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forthstating that:
(i) that expenditures payments have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer or the applicable Subsidiary Company in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary Company at the date of the acquisition expenditure or incurrence thereof by the Issuer or such Credit PartyCompany;
(ii) that no part of such expenditures or costs, in any previous or then pending application, costs has been or is being made the basis for the withdrawal of any Trust Moneys in any previous or then pending application pursuant to this Section 9.0311.02;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the Issuer, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’svendors’, mechanics’, laborerlaborers’, materialmen’s, materialmen’s statutory or other similar Lien upon any of such repairs, rebuildings or replacementreplacements, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacementreplacements;
(viv) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the IssuerCompany’s business; (v) whether any part of such repairs, rebuildings or replacements within six months before the date of acquisition thereof by the Company has been used or operated by any person other than the Company in a business similar to that in which such property has been or is to be used or operated by the Company, and whether the fair value to the Company, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $25,000, and 1% of the aggregate principal amount of the outstanding Securities and, if all of such facts are present, such part of said repairs, rebuildings or replacements shall be separately described and it shall be stated that an Appraiser’s or Independent Financial Adviser’s certificate as to the applicable Subsidiary’s businessfair value to the Company of such separately described repairs, rebuildings or replacements will be furnished under paragraph (b) of this Section 11.02;
(viv) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viiivi) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and;
(b) an Opinion all documentation required under TIA Section 314(d);
(c) (i) In case any part of Counsel substantially statingsuch repairs, rebuildings or replacements constitutes Real Property:
(i1) with respect to any such repairs, rebuildings or replacements that the instruments that have been are not encompassed within or are therewith delivered to not erected upon Mortgaged Property, an instrument or instruments in recoverable form sufficient for the Trustee conform to the applicable requirements Lien of this Indenture and any mortgage to cover such repairs, rebuildings or replacements which, if such repairs, rebuildings or replacements include leasehold or easement interests, shall include normal and customary provisions with respect thereto and evidence of the Security Documents, and that, upon the basis filing of all such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating as may be necessary to perfect such withdrawal and payment have been complied with; andLiens;
(ii2) a policy of title insurance (or a commitment to issue title insurance) insuring that the Global Security Agreement Lien of this Indenture and any Mortgage constitutes a direct and valid and perfected mortgage Lien (of the priority contemplated in Section 10.01(a) hereof) on such repairs, rebuildings or replacements in an aggregate amount equal to the other Security Document, if any, will create a valid security interest in fair value of such repairs, rebuildings or replacements. Upon compliance , together with the foregoing provisions of this such endorsements and other opinions as are contemplated in Section 9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof10.02(b), or the fair value with respect to the Issuer or the applicable Restricted Subsidiary thereof of any such repairs, rebuildings or replacements that are encompassed within or erected upon Mortgaged Property an endorsement to the title insurance policy issued pursuant to Section 10.02 regarding the affected Mortgaged Property confirming that such repairs, rebuildings or replacements are encumbered by the Lien of the applicable Mortgage;
(3) in the event that such repairs, rebuildings or replacements have a fair value in excess of $250,000, a Survey with respect thereto; and
(4) evidence of payment or a closing statement indicating payments to be made by the Company of all title premiums, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Trustee (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings or replacements stated in to the Lien of any applicable Collateral Document and to perfect such Officers’ Certificate, whichever is less.Lien; and
Appears in 1 contract
Samples: Indenture (Doe Run Resources Corp)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys from time consist of either (i) the proceeds of insurance upon any part of the Collateral or (ii) any award for or the proceeds for any of the Collateral being taken by eminent domain or sold pursuant to time held in the Asset Sale Proceeds Accountexercise by the United States of America or any state, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company and shall be paid by the Trustee upon a request by a Company Order to reimburse the Issuer Company for expenditures made, or to pay costs incurred, by the Issuer or the Restricted Subsidiary that was the subject of such Casualty Event Company to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate of the Company, dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forthMoneys:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer or the applicable Subsidiary Company in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary Company at the date of the acquisition expenditure or incurrence thereof by the Issuer or such Credit PartyCompany;
(ii) that no part of such expenditures or costs, in any previous or then pending application, costs has been or is being made the basis for the withdrawal of any Trust Moneys in any previous or then pending application pursuant to this Section 9.0311.02;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the IssuerCompany, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’svendors', mechanics’', laborer’slaborers', materialmen’s 's, statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(viv) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's business;
(v) whether any part of such repairs, rebuildings or replacements within six months before the applicable Subsidiary’s businessdate of acquisition thereof by the Company has been used or operated by others than the Company in a business similar to that in which such property has been or is to be used or operated by the Company, and whether the fair value to the Company, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $25,000, and 1% of the aggregate principal amount of the outstanding First Mortgage Notes;
(vi) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viiivii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with;
(b) all documentation required under Section 314(d) of the TIA; and
(bc) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by of the Issuer Company and the accompanying documents specified in this Section 9.0311.02, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and, and the Trust Moneys whose withdrawal is then requested may be lawfully paid over under this Section 11.02;
(ii) that the Global Security Agreement or the other Security Document, if any, will create Trustee has a valid security and perfected Lien on such repairs, rebuildings and replacements, that the same and every part thereof are subject to no Liens prior to the Lien of the Security Documents, except Liens of the type permitted under the Security Documents to which the property so destroyed or damaged shall have been subject at the time of such destruction or damage; and
(iii) that all of the Company's right, title and interest in such and to said repairs, rebuildings or replacements, or combination thereof, are then subject to the Lien of the Security Documents. Upon compliance with the foregoing provisions of this Section 9.0311.02, the Trustee shall pay on Issuer Request the written request of the Company an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ ' Certificate delivered pursuant to required by clause (i) of subsection (a) of this Section 9.03(a) hereof11.02, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof Company of such repairs, rebuildings and replacements stated in such Officers’ Certificate' Certificate (or in such independent appraiser's or independent financial advisor's certificate, if required by the TIA), whichever is less; provided, however, that notwithstanding the above, so long as no Default or Event of Default shall have occurred and be continuing, in the event that any insurance proceeds or award for such property or proceeds of such sale does not exceed the lesser of $25,000 or 1% of the principal amount of the outstanding First Mortgage Notes, and, in the good faith estimate of the Company, such destruction or damage resulting in such insurance proceeds does not detrimentally affect the value or use of the applicable Collateral in any material respect, upon delivery to the Trustee of an Officers' Certificate of the Company to such effect, the Trustee shall release to the Company such insurance proceeds or condemnation award for such property or proceeds of such sale, free of the Lien hereof and of the Security Documents.
Appears in 1 contract
Samples: Indenture (Ameristeel Corp)
Withdrawals of Insurance Proceeds and Condemnation Awards. Trust Moneys from time to time held in the Asset Sale Proceeds Account and the Specified Subsidiary Casualty Event Proceeds Account, and representing the Net Cash Proceeds of a Casualty Event (or investment earnings upon such Net Cash Proceeds), may be withdrawn by the Issuer Company and shall be paid by the Trustee to reimburse the Issuer Company for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted Subsidiary that was the subject of such Casualty Event to repair, rebuild or replace the Property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forth:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer Company or the applicable Subsidiary in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer Company or such Subsidiary at the date of the acquisition thereof by the Issuer Company or such Credit Party;
(ii) that no part of such expenditures or costs, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.03;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken Indenture not required to be paid into the Asset Sale Proceeds Account or Specified Subsidiary Casualty Event Proceeds Account, as the case may be;
(iv) that there is no outstanding Indebtedness or other obligation, other than costs for which payment is being requested, known to the IssuerCompany, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s's, mechanics’', laborer’s's, materialmen’s 's statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(v) that the Property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's or the applicable Subsidiary’s 's business;
(vi) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(b) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by the Issuer Company and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and;
(ii) that the Global Security Agreement Company or the other Security Documentapplicable Subsidiary has acquired, if anyor upon payment of the costs to be paid will acquire, will create a valid security title to such repairs, rebuildings and replacements at least equivalent to its title to the Property destroyed, damaged or taken; and
(iii) that all the Company's or the applicable Subsidiary's right, title and interest in such and to said repairs, rebuildings or replacements, or combination thereof, are then or, upon payment of the costs to be paid will Indenture be, subject to the Lien of this Indenture and the Security Documents to the same extent as the Property that was the subject of such Casualty Event. Upon compliance with the foregoing provisions of this Section 9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ ' Certificate delivered pursuant to Section 9.03(a) hereof, or the fair value to the Issuer Company or the applicable Restricted Subsidiary thereof of such repairs, rebuildings and replacements stated in such Officers’ ' Certificate, whichever is less.
Appears in 1 contract
Withdrawals of Insurance Proceeds and Condemnation Awards. Trust Moneys from time to time held in the Asset Sale Proceeds Account and the Specified Subsidiary Casualty Event Proceeds Account, and representing the Net Cash Proceeds of a Casualty Event (or investment earnings upon such Net Cash Proceeds), may be withdrawn by the Issuer Company and shall be paid by the Trustee to reimburse the Issuer Company for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted Subsidiary that was the subject of such Casualty Event to repair, rebuild or replace the Property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forth:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer Company or the applicable Subsidiary in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer Company or such Subsidiary at the date of the acquisition thereof by the Issuer Company or such Credit Party;
(ii) that no part of such expenditures or costs, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.03;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account or Specified Subsidiary Casualty Event Proceeds Account, as the case may be;
(iv) that there is no outstanding Indebtedness or other obligation, other than costs for which payment is being requested, known to the IssuerCompany, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s's, mechanics’', laborer’s's, materialmen’s 's statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such Indenture certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(v) that the Property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's or the applicable Subsidiary’s 's business;
(vi) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(b) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by the Issuer Company and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and;
(ii) that the Global Security Agreement Company or the other Security Documentapplicable Subsidiary has acquired, if anyor upon payment of the costs to be paid will acquire, will create a valid security title to such repairs, rebuildings and replacements at least equivalent to its title to the Property destroyed, damaged or taken; and
(iii) that all the Company's or the applicable Subsidiary's right, title and interest in such and to said repairs, rebuildings or replacements, or combination thereof, are then or, upon payment of the costs to be paid will be, subject to the Lien of the Security Documents to the same extent as the Property that was the subject of such Casualty Event. Upon compliance with the foregoing provisions of this Section 9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ ' Certificate delivered pursuant to Section 9.03(a) hereof, or the fair value to the Issuer Company or the applicable Restricted Subsidiary thereof of such repairs, rebuildings and replacements stated in such Officers’ ' Certificate, whichever is less.. Indenture
Appears in 1 contract
Samples: Indenture (Global Crossing LTD)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys from time consist of either (a) the proceeds of insurance upon any part of the Noteholder Collateral or (b) any award for or the proceeds of any of the Noteholder Collateral being taken by eminent domain or sold pursuant to time held in the Asset Sale Proceeds Account, and representing the Net Cash Proceeds of a Casualty Event (or investment earnings upon such Net Cash Proceeds), may be withdrawn exercise by the Issuer and shall be paid United States of America or any state, municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Noteholder Collateral, the Borrower or any Guarantor may direct the Collateral Agent by the Trustee proper officer or officers of the Borrower or the applicable Guarantor to (1) reimburse the Issuer Borrower or the applicable Guarantor for expenditures made, or to pay costs incurred, by the Issuer Borrower or the Restricted Subsidiary that was the subject of such Casualty Event applicable Guarantor to repair, rebuild or replace the Property property destroyed, damaged or taken, or (2) remit payment directly to third party contractors or suppliers to enable the Borrower or any Guarantor to acquire additional property or assets that constitute Noteholder Collateral (whether or not in replacement of the property destroyed, damaged or taken). The Collateral Agent shall disburse such Trust Moneys upon receipt by the Trustee Collateral Agent of the following:
(a) an Officers’ ' Certificate dated not more than 30 days prior to the date of the application for Borrower or the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractorapplicable Guarantor, setting forth:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer Borrower or the applicable Subsidiary Guarantor in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Noteholder Collateral or to purchase additional property or assets that constitute Noteholder Collateral, which which, in each case, shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary at the date of the acquisition thereof by the Issuer or such Credit Party;
(ii) that no part of such expenditures or costs, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.034.3;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the IssuerBorrower or the applicable Guarantor, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s's, mechanics’', laborer’slaborers' materialmen's, materialmen’s statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(viv) that the Property property to be repaired, rebuilt rebuilt, replaced or replaced purchased is necessary or desirable in the conduct of the Issuer’s Borrower's or the applicable Subsidiary’s Guarantor's business;; and-
(viv) that no Default or Event of Default shall have occurred and be continuing.
(i) In case any part of such repairs, unremedied rebuildings or replacements constitutes Real Property:
(A) with respect to any such repairs, rebuildings or replacements that are not encompassed within or are not erected upon Mortgaged Property, an instrument or instruments in recordable form sufficient for the Lien of this Agreement and unwaivedany Mortgage to cover such repairs, rebuildings or replacements which, if such repairs, rebuildings or replacements include leasehold or easement interests, shall include normal and customary provisions with respect thereto and evidence of the filing of all such documents as may be necessary to perfect such Liens;
(viiB) a policy of title insurance (or a commitment to issue title insurance) insuring that the Trust Moneys Lien of this Agreement and any Mortgage constitutes a direct and valid and perfected mortgage Lien on such repairs, rebuildings or replacements (subject to no Prior Liens other than Prior Liens which were permitted with respect to the Noteholder Collateral repaired, rebuilt or replaced) in an aggregate amount equal to the amount expended with respect to such repairs, rebuildings or replacements or purchase, or with respect to any such repairs, rebuildings or replacements that will remain after are encompassed within or are erected upon Mortgaged Property an endorsement to the title insurance policy regarding the affected Mortgaged Property confirming that such withdrawal will be sufficient to complete repairs, rebuildings or replacements are encumbered by the repair, rebuilding or replacement Lien of the Property destroyedapplicable Mortgage (subject to no Prior Liens other than Prior Liens which were permitted under the Mortgage with respect to the Noteholder Collateral repaired, damaged rebuilt or takenreplaced); and
(viiiC) evidence of payment or a closing statement indicating payments to be made by the Borrower or the applicable Guarantor of all title premiums, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Collateral Agent (and any local counsel), that all conditions precedent herein provided for relating may be incurred to validly and effectively subject such withdrawal and payment have been complied with; and
(b) an Opinion of Counsel substantially stating:
(i) that the instruments that have been repairs, rebuildings or are therewith delivered replacements to the Trustee conform Lien of any applicable Security Document to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of perfect such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied withLien; and
(ii) that in case any part of such repairs, rebuildings or replacements constitutes personal property interests:
(A) an instrument in recordable form sufficient for the Global Lien of any applicable Security Agreement or the other Security Document, if any, will create a valid security interest in Document to cover such repairs, rebuildings or replacements. Upon compliance with ; and
(B) evidence of payment or a closing statement indicating payments to be made by the foregoing provisions of this Section 9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof, or the fair value to the Issuer Borrower or the applicable Restricted Subsidiary thereof Guarantor of all filing fees, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Collateral Agent (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings and or replacements stated in such Officers’ Certificate, whichever is lessto the Lien of any Security Document.
Appears in 1 contract
Samples: Senior Secured Note Purchase Agreement (PAV Republic, Inc.)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys from time to time held in the Asset Sale consist of either (i) Net Insurance Proceeds Accountor (ii) Condemnation Awards, and representing the Net Cash Proceeds of a Casualty Event (or investment earnings upon such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company (or by a Subsidiary of the Company if title to the property damaged or taken was held by such Subsidiary, but only to the extent of the Net Insurance Proceeds or Condemnation Proceeds relating thereto) and shall be paid by the Trustee upon a Company Order to reimburse the Issuer Company or its Subsidiary for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted its Subsidiary that was the subject of such Casualty Event to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate of the Company or its Subsidiary, dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forthMoneys:
(i) that expenditures have been made, made or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer Company or the applicable its Subsidiary in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer Company or such its Subsidiary at the date of the acquisition expenditure or incurrence thereof by the Issuer Company or such Credit Partyits Subsidiary;
(ii) that no part of such expenditures or costs, in any previous or then pending application, costs has been or is being made the basis for the withdrawal of any Trust Moneys in any previous or then pending application pursuant to this Section 9.0313.2;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligation, other than costs for which payment is being requested, known to the Issuer, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s, mechanics’, laborer’s, materialmen’s statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(v) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's or the applicable its Subsidiary’s 's business;; and
(viiv) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(viib) that all documentation, if any, required under Section 314(d) of the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or takenIndenture Act; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(bc) an Opinion of Counsel substantially stating:
(i) stating that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by of the Issuer Company or its Subsidiary and the accompanying documents specified in this Section 9.0313.2, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(ii) that , and the Global Security Agreement or the other Security Document, if any, will create a valid security interest in such repairs, rebuildings or replacementsTrust Moneys whose withdrawal is then requested may be lawfully paid over under this Section 13.2. Upon compliance with the foregoing provisions of this Section 9.0313.2, the Trustee shall pay on Issuer Request the written request of the Company or its Subsidiary an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ ' Certificate delivered pursuant to required by clause (i) of subsection (a) of this Section 9.03(a) hereof13.2, or the fair value to the Issuer Company or the applicable Restricted its Subsidiary thereof of such repairs, rebuildings and replacements stated in such Officers’ Certificate' Certificate (or in such Independent Appraiser's or Independent Financial Advisor's certificate, if required by the Trust Indenture Act), whichever is less; provided, however, that notwithstanding the above, so long as no Default or Event of Default shall have occurred and be continuing, in the event that any Net Insurance Proceeds or Condemnation Award for such property or proceeds of such sale does not exceed the lesser of $25,000 or 1% of the principal amount of the Outstanding Securities, and, in the good faith estimate of the Company, such destruction or damage resulting in such Net Insurance Proceeds or Condemnation Award does not detrimentally affect the value or use of the applicable Collateral in any material respect, upon delivery to the Trustee of an Officers' Certificate of the Company or its Subsidiary to such effect, the Trustee shall release to the Company or its Subsidiary such Net Insurance Proceeds or Condemnation Award for such property or proceeds of such sale, free of the Lien hereof and of the Security Documents.
Appears in 1 contract
Samples: Indenture (River Road Realty Corp)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys from time consist of either (a) any Net Proceeds or (b) any Net Award or the proceeds of any of the Collateral subject to time held in a Taking or sold pursuant to the Asset Sale Proceeds Accountexercise by the United States of America or any state, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company and shall be paid by the Trustee upon a request by the Company by the proper officer or officers of the Company to reimburse the Issuer Company for expenditures made, or to pay costs incurred, by the Issuer or the Restricted Subsidiary that was the subject of such Casualty Event Company to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate of the Company, dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i), (iv) and (vi), by an Independent contractorAppraiser or Financial Advisor, setting forthcertifying:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer or the applicable Subsidiary Company in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value Fair Value thereof to the Issuer or such Subsidiary Company at the date of the acquisition thereof by the Issuer Company, except that it shall not be necessary under this clause (i) to state the Fair Value of any such repairs, rebuildings or such Credit Partyreplacements that are separately described pursuant to clause (vi) of this paragraph (a) and whose Fair Value is stated in the Independent Appraiser's or Independent Financial Advisor's certificate under paragraph (c) of this Section 11.3;
(ii) that no part of such expenditures or costs, in any previous or then pending application, application has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.0311.3;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the Issuer, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’svendorls, mechanics’mechanic's, laborer’s's, materialmen’s materialman's, statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(viv) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's business;
(v) whether any part of such repairs, rebuildings or replacements within six months before the applicable Subsidiary’s businessdate of acquisition thereof by the Company, has been used or operated by others than the Company in a business similar to that in which such property has been or is to be used or operated by the Company, and whether the fair value to the Company, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $250,000, and 1% of the aggregate principal amount of the outstanding Securities; and, if all of such facts are present, such part of such repairs, rebuildings or replacements shall be separately described, and it shall be stated that an Independent Appraiser's or Independent Financial Advisor's certificate as to the Fair Value to the Company of such separately described repairs, rebuildings or replacements will be furnished under paragraph (b) of this Section 11.3;
(vi) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viiivii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with.
(b) all documentation required under TIA Section 314(d).
(c) In case any part of such repairs, rebuildings or replacements is separately described pursuant to the foregoing clause (vi) of paragraph (a) of this Section 11.3, a certificate of an Independent Appraiser or Independent Financial Advisor stating the fair value to the Company, in such Independent Appraiser's or Independent Financial Advisor's opinion, of such separately described repairs, rebuildings or replacements at the date of the acquisition thereof by the Company.
(i) In case any part of such repairs, rebuildings or replacements constitutes Real Property:
(1) with respect to any such repairs, rebuildings or replacements that are not encompassed within or are not erected upon Mortgaged Property, an instrument or instruments in recordable form sufficient for the Lien of this Indenture and any Mortgage to cover such repairs, rebuildings or replacements which, if such repairs, rebuildings or replacements include leasehold or easement interests, shall include normal and customary provisions with respect thereto and evidence of the filing of all such documents as may be necessary to perfect such Liens;
(2) a policy of title insurance (or a commitment to issue title insurance) insuring that the Lien of this Indenture and any Mortgage constitutes a direct and valid and perfected first priority mortgage Lien on such repairs, rebuildings or replacements in an aggregate amount equal to the fair value of such repairs, rebuildings or replacements, together with such endorsements and other opinions as are contemplated by Section 10.2(b)(ii), or with respect to any such repairs, rebuildings or replacements that are encompassed within or are erected upon Mortgaged Property an endorsement to the title insurance policy issued pursuant to Section 10.2(b)(ii) regarding the affected Mortgaged Property confirming that such repairs, rebuildings or replacements are encumbered by the first priority Lien of the applicable Mortgage;
(3) in the event such repairs, rebuildings or replacements have a fair value in excess of $250,000, a Survey with respect thereto; and
(b4) an Opinion evidence of Counsel substantially stating:
payment or a closing statement indicating payments to be made by the Company of all title premiums, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Trustee (i) and any local counsel), that the instruments that have been may be incurred to validly and effectively subject such repairs, rebuildings or are therewith delivered replacements to the Trustee conform Lien of any applicable Security Document to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of perfect such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied withLien; and
(ii) that in case any part of such repairs, rebuildings or replacements constitutes personal property interests:
(1) an instrument in recordable form sufficient for the Global Lien of any applicable Security Agreement or the other Security Document, if any, will create a valid security interest in Document to cover such repairs, rebuildings or replacements. Upon compliance with ; and
(2) evidence of payment or a closing statement indicating payments to be made by the foregoing provisions Company of this Section 9.03all filing fees, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal (and any local counsel), that may be incurred to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof of validly and effectively subject such repairs, rebuildings and or replacements stated in such Officers’ Certificate, whichever is lessto the Lien of any Security Document.
Appears in 1 contract
Samples: Indenture (Toms Foods Inc)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys from time to time held in the Asset Sale consist of either (i) Net Insurance Proceeds Accountor (ii) Condemnation Awards, and representing the Net Cash Proceeds of a Casualty Event (or investment earnings upon such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company (or by a Subsidiary of the Company if title to the property damaged or taken was held by such Subsidiary, but only to the extent of the Net Insurance Proceeds or Condemnation Proceeds relating thereto) and shall be paid by the Trustee upon a Company Order to reimburse the Issuer Company or its Subsidiary for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted its Subsidiary that was the subject of such Casualty Event to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate of the Company or its Subsidiary, dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forthMoneys:
(i) that expenditures have been made, made or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer Company or the applicable its Subsidiary in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer Company or such its Subsidiary at the date of the acquisition expenditure or incurrence thereof by the Issuer Company or such Credit Partyits Subsidiary;
(ii) that no part of such expenditures or costs, in any previous or then pending application, costs has been or is being made the basis for the withdrawal of any Trust Moneys in any previous or then pending application pursuant to this Section 9.03;13.2; 103 Draft - January 14, 2004 Exhibit C
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligation, other than costs for which payment is being requested, known to the Issuer, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s, mechanics’, laborer’s, materialmen’s statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(v) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's or the applicable its Subsidiary’s 's business;; and
(viiv) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(viib) that all documentation, if any, required under Section 314(d) of the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or takenIndenture Act; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(bc) an Opinion of Counsel substantially stating:
(i) stating that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by of the Issuer Company or its Subsidiary and the accompanying documents specified in this Section 9.0313.2, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(ii) that , and the Global Security Agreement or the other Security Document, if any, will create a valid security interest in such repairs, rebuildings or replacementsTrust Moneys whose withdrawal is then requested may be lawfully paid over under this Section 13.2. Upon compliance with the foregoing provisions of this Section 9.0313.2, the Trustee shall pay on Issuer Request the written request of the Company or its Subsidiary an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ ' Certificate delivered pursuant to required by clause (i) of subsection (a) of this Section 9.03(a) hereof13.2, or the fair value to the Issuer Company or the applicable Restricted its Subsidiary thereof of such repairs, rebuildings and replacements stated in such Officers’ Certificate' Certificate (or in such Independent Appraiser's or Independent Financial Advisor's certificate, if required by the Trust Indenture Act), whichever is less; provided, however, that notwithstanding the above, so long as no Default or Event of Default shall have occurred and be continuing, in the event that any Net Insurance Proceeds or Condemnation Award for such property or proceeds of such sale does not exceed the lesser of $25,000 or 1% of the principal amount of the Outstanding Securities, and, in the good faith estimate of the Company, such destruction or damage resulting in such Net Insurance Proceeds or Condemnation Award does not detrimentally affect the value or use of the applicable Collateral in any material respect, upon delivery to the Trustee of an Officers' Certificate of the Company or its Subsidiary to such effect, the Trustee shall release to the Company or its Subsidiary such Net Insurance Proceeds or Condemnation Award for such property or proceeds of such sale, free of the Lien hereof and of the Security Documents.
Appears in 1 contract
Samples: Indenture (Bayou Steel Corp)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys from time consist of either (a) the proceeds of insurance upon any part of the Collateral or (b) any award for or the proceeds of any of the Collateral being taken by eminent domain or sold pursuant to time held in the Asset Sale Proceeds Accountexercise by the United States of America or any state, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company or any Guarantor, as applicable, and shall be paid by the Trustee Collateral Agent upon a request by the Company or the applicable Guarantor by the proper officer or officers of the Company or the applicable Guarantor to reimburse the Issuer Company or the applicable Guarantor for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted Subsidiary that was the subject of such Casualty Event applicable Guarantor to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee and the Collateral Agent of the following:
(a) an Officers’ ' Certificate of the Company or the applicable Guarantor dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and (if required by the TIA) signed also also, in the case of the following clauses (i), (iv) and (vi), by an Independent contractorAppraiser or Independent Financial Advisor, setting forth:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer Company or the applicable Subsidiary Guarantor in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value Fair Market Value thereof to the Issuer Company or such Subsidiary the applicable Guarantor at the date of the acquisition thereof by the Issuer Company or the applicable Guarantor, except that it shall not be necessary under this clause (i) to state the fair value of any such Credit Partyrepairs, rebuildings or replacements that are separately described pursuant to clause (vi) of this paragraph (a) and whose Fair Market Value is stated in the Independent Appraiser's or Independent Financial Advisor's certificate under paragraph (b) of this Section 12.3;
(ii) that no part of such expenditures or costs, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.0312.3;
(iii) that no part of such expenditure expenditures or costs has been paid out of either the proceeds of insurance upon any part of the Collateral not required to be paid to the Collateral Agent under the relevant Mortgage or any award for or the proceeds from any of the Collateral being taken not required to be paid into to the Asset Sale Proceeds AccountCollateral Agent under Section 11.5, as the case may be;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the IssuerCompany or the applicable Guarantor, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s's, mechanics’', laborer’slaborers' materialmen's, materialmen’s statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(v) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's or the applicable Subsidiary’s Guarantor's business;
(vi) whether any part of such repairs, rebuildings or replacements within six months before the date of acquisition thereof by the Company or the applicable Guarantor, has been used or operated by others than the Company or the applicable Guarantor in a business similar to that in which such property has been or is to be used or operated by the Company or the applicable Guarantor, and whether the Fair Market Value to the Company or the applicable Guarantor, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $250,000 and 1% of the aggregate principal amount of the outstanding Notes; and, if all of such facts are present, such part of said repairs, rebuildings or replacements shall be separately described, and it shall be stated that an Independent Appraiser's or Independent Financial Advisor's certificate as to the Fair Market Value to the Company or the applicable Guarantor of such separately described repairs, rebuildings or replacements will be furnished under paragraph (b) of this Section 12.3;
(vii) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with.
(b) In case any part of such repairs, rebuildings or replacements is separately described pursuant to the foregoing clause (vi) of paragraph (a) of this Section 12.3, a certificate of an Independent Appraiser or Independent Financial Advisor (if required by the TIA) stating the Fair Market Value to the Company or the applicable Guarantor, in such Independent Appraiser's or Independent Financial Advisor's opinion, of such separately described repairs, rebuildings or replacements at the date of the acquisition thereof by the Company or the applicable Guarantor.
(i) In case any part of such repairs, rebuildings or replacements constitutes Real Property: 100
(1) with respect to any such repairs, rebuildings or replacements that are not encompassed within or are not erected upon Mortgaged Property, an instrument or instruments in recordable form sufficient for the Lien of this Indenture and any Mortgage to cover such repairs, rebuildings or replacements which, if such repairs, rebuildings or replacements include leasehold or easement interests, shall include normal and customary provisions with respect thereto and evidence of the filing of all such documents as may be necessary to perfect such Liens;
(2) a policy of title insurance (or a commitment to issue title insurance) insuring that the Lien of this Indenture and any Mortgage (other than the Mortgage executed and delivered in respect of the Mortgaged Property located in Canada) constitutes a direct and valid and perfected mortgage Lien on such repairs, rebuildings or replacements (subject to no Prior Liens other than Prior Liens which were permitted with respect to the Collateral repaired, rebuilt or replaced) in an aggregate amount equal to the Fair Market Value of such repairs, rebuildings or replacements, together with such endorsements and other opinions as are contemplated by Section 11.2(b)(ii), or with respect to any such repairs, rebuildings or replacements that are encompassed within or are erected upon Mortgaged Property (other than Mortgaged Property located in Canada) an endorsement to the title insurance policy issued pursuant to Section 11.2(b)(ii) regarding the affected Mortgaged Property confirming that such repairs, rebuildings or replacements are encumbered by the Lien of the applicable Mortgage (subject to no Prior Liens other than Prior Liens which were permitted under the Mortgage with respect to the Collateral repaired, rebuilt or replaced) or, with respect to any such repairs, rebuildings or replacements that are encompassed within or erected upon Mortgaged Property located in Canada, a title Opinion of Counsel in form and substance satisfactory to the Trustee and the Collateral Agent;
(3) in the event such repairs, rebuildings or replacements have a Fair Market Value in excess of $250,000, a Survey with respect thereto; and
(b4) an Opinion evidence of Counsel substantially stating:
payment or a closing statement indicating payments to be made by the Company or the applicable Guarantor of all title premiums, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Collateral Agent (i) and any local counsel), that the instruments that have been may be incurred to validly and effectively subject such repairs, rebuildings or are therewith delivered replacements to the Trustee conform Lien of any applicable Security Document to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of perfect such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied withLien; and
(ii) that in case any part of such repairs, rebuildings or replacements constitutes personal property interests:
(1) an instrument in recordable form sufficient for the Global Lien of any applicable Security Agreement or the other Security Document, if any, will create a valid security interest in Document to cover such repairs, rebuildings or replacements. Upon compliance with ; and
(2) evidence of payment or a closing statement indicating payments to be made by the foregoing provisions of this Section 9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof, or the fair value to the Issuer Company or the applicable Restricted Subsidiary thereof Guarantor of all filing fees, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Collateral Agent (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings and or replacements stated in such Officers’ Certificate, whichever is lessto the Lien of any Security Document.
Appears in 1 contract
Samples: Indenture (Blue Steel Capital Corp)
Withdrawals of Insurance Proceeds and Condemnation Awards. (a) To the extent that any Trust Moneys consist of either (i) the proceeds of insurance upon any part of the Collateral or (ii) any award for or the proceeds from time any of the Collateral being taken by eminent domain, expropriation or other similar governmental taking or a requisition for title or sold pursuant to time held in the Asset Sale Proceeds Accountexercise by any governmental authority of any right which it may then have to purchase, and representing or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company or the applicable Subsidiary Guarantor and shall be paid by the Trustee upon a request by the Company to the Trustee by the proper officer or officers of the Company or the applicable Subsidiary Guarantor to reimburse the Issuer Company or the applicable Subsidiary Guarantor for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted applicable Subsidiary that was the subject of such Casualty Event Guarantor to repair, rebuild or replace the Property property destroyed, damaged or taken, taken upon receipt by the Trustee of the following:
(a) an Officers’ Certificate dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractorMoneys, setting forth:
(i1) that expenditures have been made, or costs incurred, or will be incurred simultaneously simultaneous with such withdrawal of Trust Moneys, by the Issuer Company or the applicable Subsidiary Guarantor in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary at the date of the acquisition thereof by the Issuer or such Credit Party;
(ii2) that no part of such expenditures or costsexpenditures, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.0313.11;
(iii3) that no part of such expenditure expenditures or costs has been paid out of either the proceeds of insurance upon any part of the Collateral not required to be paid to the Trustee or the Collateral Trustee, as appropriate, under the Collateral Documents or any award for or the proceeds from any of the Collateral being taken not required to be paid into to the Asset Sale Proceeds AccountTrustee or the Collateral Trustee, as appropriate, under the Collateral Documents, as the case may be;
(iv4) that there is no outstanding Indebtedness indebtedness or other obligation, other than costs for which payment is being requested, known to the IssuerCompany, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s, mechanics’, laborer’s, materialmen’s ’s, statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;; and
(v) that the Property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s or the applicable Subsidiary’s business;
(vi5) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and.
(b) To the extent applicable, in connection with any withdraw of Trust Moneys pursuant to Section 13.11(a), the Company and each obligor shall cause § 314 of the TIA relating to the release of property or securities from the Lien hereof and of the Collateral Documents to be complied with. Any certificate or opinion required by § 314 of the TIA may be made by an Opinion officer of Counsel substantially stating:the Company, except in cases in which the TIA requires that such certificate or opinion be made by an independent person.
(ic) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(ii) that the Global Security Agreement or the other Security Document, if any, will create a valid security interest in such repairs, rebuildings or replacements. Upon compliance with the foregoing provisions of this Section 9.0313.11, the Trustee shall pay on Issuer Request Company request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant required by paragraph (1) of this Section 13.11. Subject to Section 9.03(athe Intercreditor Agreement, unless the Collateral Trustee and Trustee shall otherwise agree, all insurance relating to the Collateral must name the Collateral Trustee and Trustee as an insured, but without liability for premiums, calls or assessments, and all amounts of whatsoever nature payable under any insurance (to the extent covering the Collateral) hereofmust be payable to the Collateral Trustee and Trustee for distribution, first to itself and thereafter to the Company or the relevant Subsidiary Guarantor, as owner of such Collateral or others as their interests may appear. All amounts payable under any insurance with respect to Collateral involving any damage to Collateral not constituting an actual or constructive or an agreed or compromised total loss, the insurers may pay directly for the repair, salvage or other charges involved or, if the Company or the relevant Subsidiary Guarantor shall have first fully repaired the damage or paid all of the salvage or other charges, may pay the Company or the relevant Subsidiary Guarantor as reimbursement therefor; provided, however, that if such amounts (including any franchise or deductible) are in excess of $1,000,000, the insurers shall, subject to the Intercreditor Agreement, make such payment to the Collateral Trustee and Trustee. Subject to the Intercreditor Agreement, all payments of insurance in respect of Collateral shall be made to the Collateral Trustee and the Trustee if an Event of Default shall have occurred or any event which with the giving of notice or the lapse of time, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof both, would constitute an Event of such repairs, rebuildings and replacements stated in such Officers’ Certificate, whichever is lessDefault.
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Withdrawals of Insurance Proceeds and Condemnation Awards. Subject to the provisions of the Security Documents, to the extent that any Trust Moneys from time consist of either (i) any Net Casualty Proceeds or (ii) any Net Award or the proceeds for any of the Collateral subject to time held in a Taking sold pursuant to the Asset Sale Proceeds Accountexercise by the United States of America or any state, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company and shall be paid by the Trustee upon a request by a Company Order to reimburse the Issuer Company for expenditures made, or to pay costs incurred, by the Issuer or the Restricted Subsidiary that was the subject of such Casualty Event Company to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee of the following:
: (a) an Officers’ ' Certificate of the Company, dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forth:
Moneys: (i) that expenditures have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer or the applicable Subsidiary Company in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary Company at the date of the acquisition expenditure or incurrence thereof by the Issuer or such Credit Party;
Company; (ii) that no part of such expenditures or costs, in any previous or then pending application, costs has been or is being made the basis for the withdrawal of any Trust Moneys in any previous or then pending application pursuant to this Section 9.03;
11.2; (iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the Issuer, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’svendors', mechanics’', laborer’slaborers', materialmen’s 's, statutory or other similar Lien upon any of such repairs, rebuildings or replacementreplacements, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
replacements; (viv) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's business; (v) whether any part of such repairs, rebuildings or replacements within six months before the applicable Subsidiary’s business;
date of acquisition thereof by the Company has been used or operated by any person other than the Company in a business similar to that in which such property has been or is to be used or operated by the Company, and whether the fair value to the Company, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $25,000, and 1% of the aggregate principal amount of the outstanding Notes and, if all of such facts are present, such part of said repairs, rebuildings or replacements shall be separately described and it shall be stated that an Appraiser's or Independent Financial Adviser's certificate as to the fair value to the Company of such separately described repairs, rebuildings or replacements will be furnished under paragraph (b) of this Section 11.2; (vi) that no Default or Event of Default shall have occurred and be continuing, unremedied ; and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(b) an Opinion of Counsel substantially stating:all documentation required under TIA ss. 314(d); (c)
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements In case any part of this Indenture and the Security Documents, and that, upon the basis of such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(ii) that the Global Security Agreement or the other Security Document, if any, will create a valid security interest in such repairs, rebuildings or replacements. Upon compliance replacements constitutes Real Property: (1) with the foregoing provisions of this Section 9.03, the Trustee shall pay on Issuer Request an amount of Trust Moneys of the character aforesaid equal respect to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof of any such repairs, rebuildings or replacements that are not encompassed within or are not erected upon Mortgaged Property, an instrument or instruments in recordable form sufficient for the Lien of this Indenture and any mortgage to cover such repairs, rebuildings or replacements stated in which, if such Officers’ Certificaterepairs, whichever is less.rebuildings or replacements include leasehold or easement interests, shall include normal and customary provisions with respect thereto and evidence of the filing of all such documents as may be necessary to perfect such Liens;
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Withdrawals of Insurance Proceeds and Condemnation Awards. (a) To the extent that any Trust Moneys consist of either (i) the proceeds of insurance upon any part of the Collateral or (ii) any award for or the proceeds from time any of the Collateral being taken by eminent domain, expropriation or other similar governmental taking or a requisition for title or sold pursuant to time held in the Asset Sale Proceeds Accountexercise by any governmental authority of any right which it may then have to purchase, and representing or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company or the applicable Subsidiary Guarantor and shall be paid by the Trustee upon a request by the Company to the Trustee by the proper officer or officers of the Company or the applicable Subsidiary Guarantor to reimburse the Issuer Company or the applicable Subsidiary Guarantor for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted applicable Subsidiary that was the subject of such Casualty Event Guarantor to repair, rebuild or replace the Property property destroyed, damaged or taken, taken upon receipt by the Trustee of the following:
(a1) an Officers’ ' Certificate dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractorMoneys, setting forth:
(iA) that expenditures have been made, or costs incurred, or will be incurred simultaneously simultaneous with such withdrawal of Trust Moneys, by the Issuer Company or the applicable Subsidiary Guarantor in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary at the date of the acquisition thereof by the Issuer or such Credit Party;
(iiB) that no part of such expenditures or costsexpenditures, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.0312.03;
(iiiC) that no part of such expenditure expenditures or costs has been paid out of either the proceeds of insurance upon any part of the Collateral not required to be paid to the Trustee or the Collateral Agent, as appropriate, under the Security Documents or any award for or the proceeds from any of the Collateral being taken not required to be paid into to the Asset Sale Proceeds AccountTrustee or the Collateral Agent, as appropriate, under the Security Documents, as the case may be;
(ivD) that there is no outstanding Indebtedness indebtedness or other obligation, other than costs for which payment is being requested, known to the IssuerCompany, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s's, mechanics’', laborer’s's, materialmen’s 's, statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien Xxxx might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;; and
(v) that the Property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s or the applicable Subsidiary’s business;
(viE) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and.
(b) To the extent applicable, in connection with any withdraw of Trust Moneys pursuant to Section 12.03(a), the Company and each obligor shall cause ss. 314 of the TIA relating to the release of property or securities from the Lien hereof and of the Security Documents to be complied with. Any certificate or opinion required by ss. 314 of the TIA may be made by an Opinion officer of Counsel substantially stating:the Company, except in cases in which the TIA requires that such certificate or opinion be made by an independent person.
(ic) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(ii) that the Global Security Agreement or the other Security Document, if any, will create a valid security interest in such repairs, rebuildings or replacements. Upon compliance with the foregoing provisions of this Section 9.03Section, the Trustee shall pay on Issuer Request Company request an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ ' Certificate delivered pursuant to required by paragraph (A) of subsection (1) of this Section 9.03(a) hereof, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof of such repairs, rebuildings and replacements stated in such Officers’ Certificate, whichever is less12.
Appears in 1 contract
Samples: Indenture (Columbus McKinnon Corp)
Withdrawals of Insurance Proceeds and Condemnation Awards. Subject to the provisions of the Collateral Documents, to the extent that any Trust Moneys from time consist of either (i) any Net Proceeds or (ii) any Net Award or the proceeds for any of the Collateral subject to time held in a Taking sold pursuant to the Asset Sale Proceeds Account108 exercise by the United States of America or any State, and representing municipality or other governmental authority of any right which it may then have to purchase, or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company and shall be paid by the Trustee upon a request by a Company Order to reimburse the Issuer Company for expenditures made, or to pay costs incurred, by the Issuer or the Restricted Subsidiary that was the subject of such Casualty Event Company to repair, rebuild or replace the Property property destroyed, damaged or taken, upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate of the Company, dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i) and (vi), by an Independent contractor, setting forthstating that:
(i) that expenditures payments have been made, or costs incurred, or will be incurred simultaneously with such withdrawal of Trust Moneys, by the Issuer or the applicable Subsidiary Company in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary Company at the date of the acquisition expenditure or incurrence thereof by the Issuer or such Credit PartyCompany;
(ii) that no part of such expenditures or costs, in any previous or then pending application, costs has been or is being made the basis for the withdrawal of any Trust Moneys in any previous or then pending application pursuant to this Section 9.0311.02;
(iii) that no part of such expenditure or costs has been paid out of any award for or the proceeds from any of the Collateral being taken not required to be paid into the Asset Sale Proceeds Account;
(iv) that there is no outstanding Indebtedness or other obligationIndebtedness, other than costs for which payment is being requested, known to the Issuer, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’svendors', mechanics’', laborer’slaborers', materialmen’s 's, statutory or other similar Lien upon any of such repairs, rebuildings or replacementreplacements, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacementreplacements;
(viv) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's business;
(v) whether any part of such repairs, rebuildings or replacements within six months before the applicable Subsidiary’s businessdate of acquisition thereof by the Company has been used or operated by any person other than the Company in a business similar to that in which such property 109 has been or is to be used or operated by the Company, and whether the fair value to the Company, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $25,000, and 1% of the aggregate principal amount of the outstanding Securities and, if all of such facts are present, such part of said repairs, rebuildings or replacements shall be separately described and it shall be stated that an Appraiser's or Independent Financial Adviser's certificate as to the fair value to the Company of such separately described repairs, rebuildings or replacements will be furnished under paragraph (b) of this Section 11.02;
(vi) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(vii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property destroyed, damaged or taken; and
(viiivii) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with;
(b) all documentation required under TIA Section 314(d);
(i) In case any part of such repairs, rebuildings or replacements constitutes Real Property:
(1) with respect to any such repairs, rebuildings or replacements that are not encompassed within or are not erected upon Mortgaged Property, an instrument or instruments in recoverable form sufficient for the Lien of this Indenture and any mortgage to cover such repairs, rebuildings or replacements which, if such repairs, rebuildings or replacements include leasehold or easement interests, shall include normal and customary provisions with respect thereto and evidence of the filing of all such documents as may be necessary to perfect such Liens;
(2) a policy of title insurance (or a commitment to issue title insurance) insuring that the Lien of this Indenture and any Mortgage constitutes a direct and valid and perfected mortgage Lien (of the priority contemplated in Section 10.01(a) hereof) on such repairs, rebuildings or replacements in an aggregate amount equal to the fair value of such repairs, rebuildings or replacements, together with such endorsements and other opinions as are contemplated in Section 10.02(b), or with respect to any such repairs, rebuildings or replacements that are encompassed within or erected upon Mortgaged Property 110 an endorsement to the title insurance policy issued pursuant to Section 10.02 regarding the affected Mortgaged Property confirming that such repairs, rebuildings or replacements are encumbered by the Lien of the applicable Mortgage;
(3) in the event that such repairs, rebuildings or replacements have a fair value in excess of $250,000, a Survey with respect thereto; and
(b4) evidence of payment or a closing statement indicating payments to be made by the Company of all title premiums, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Trustee (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings or replacements to the Lien of any applicable Collateral Document and to perfect such Lien; and
(ii) in case any part of such repairs, rebuildings or replacements constitutes personal property interests:
(1) an instrument in recoverable form sufficient for the Lien of the Security Agreement to cover such repairs, rebuildings or replacements; and
(2) evidence of payment or a closing statement indicating payments to be made by the Company of all filing fees, recording charges, transfer taxes and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Trustee (and any local counsel), that may be incurred to validly and effectively subject such repairs, rebuildings or replacements to the Lien of any Collateral Document; and
(d) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Collateral Documents, and that, upon the basis of such request by of the Issuer Company and the accompanying documents specified in this Section 9.0311.02, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with, and the Trust Moneys whose withdrawal is then requested may be lawfully paid over under this Section 11.02; and111
(ii) that the Global Security Agreement Company has acquired title to said repairs, rebuildings and replacements at least equivalent to its title to the property destroyed, damaged or taken, and that the other Security Documentsame and every part thereof are free and clear of all Liens prior to the Lien of any Collateral Documents, if anyexcept Liens of the type permitted under the applicable Collateral Document to which the property so destroyed, will create a valid security damaged or taken shall have been subject at the time of such destruction, damage or taking; and
(iii) that all of the Company's right, title and interest in such and to said repairs, rebuildings or replacements, or combination thereof, are then subject to the Lien of the Collateral Documents. Upon compliance with the foregoing provisions of this Section 9.0311.02, the Trustee shall pay on Issuer Request the written request of the Company an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ ' Certificate delivered pursuant to required by clause (i) of subsection (a) of this Section 9.03(a) hereof11.02, or the fair value to the Issuer or the applicable Restricted Subsidiary thereof Company of such repairs, rebuildings and replacements stated in such Officers’ Certificate' Certificate (or in such Appraiser's or Independent Financial Advisor's certificate, if required), whichever is less.
Appears in 1 contract
Samples: Indenture (Doe Run Resources Corp)
Withdrawals of Insurance Proceeds and Condemnation Awards. To the extent that any Trust Moneys consist of either (a) the proceeds of insurance upon any part of the Collateral or (b) any award for or the proceeds from time any of the Collateral being taken by eminent domain, expropriation or other similar governmental taking or a requisition for title) or sold pursuant to time held in the Asset Sale Proceeds Accountexercise by any governmental authority of any right which it may then have to purchase, and representing or to designate a purchaser or to order a sale of any part of the Net Cash Proceeds of a Casualty Event (or investment earnings upon Collateral, such Net Cash Proceeds), Trust Moneys may be withdrawn by the Issuer Company or the applicable Guarantor and shall be paid by the Trustee upon a request by the Company to the Trustee by the proper officer or officers of the Company or the applicable Guarantor to reimburse the Issuer Company or the applicable Guarantor for expenditures made, or to pay costs incurred, by the Issuer Company or the Restricted Subsidiary that was the subject of such Casualty Event applicable Guarantor to repair, rebuild or replace the Property property destroyed, damaged or taken, taken upon receipt by the Trustee of the following:
(a) an Officers’ ' Certificate dated not more than 30 days prior to the date of the application for the withdrawal and payment of such Trust Moneys and signed also in the case of the following clauses (i), (iv) and (vi), by an Independent contractorAppraiser, setting forth:
(i) that expenditures have been made, or costs incurred, or will be incurred simultaneously simultaneous with such withdrawal of Trust Moneys, by the Issuer Company or the applicable Subsidiary Guarantor in a specified amount for the purpose of making certain repairs, rebuildings and replacements of the Collateral, which shall be briefly described, and stating the fair value thereof to the Issuer or such Subsidiary Company at the date of the acquisition thereof by the Issuer Company, except that it shall not be necessary under this paragraph to state the fair value of any of such repairs, rebuildings or such Credit Partyreplacements that are separately described pursuant to paragraph (vi) of this subsection and whose fair value is stated in the Appraiser's certificate under the following subsection (b) of this Section;
(ii) that no part of such expenditures or costsexpenditures, in any previous or then pending application, has been or is being made the basis for the withdrawal of any Trust Moneys pursuant to this Section 9.0312.03;
(iii) that no part of such expenditure expenditures or costs has been paid out of either the proceeds of insurance upon any part of the Collateral not required to be paid to the Trustee or the Collateral Agent, as appropriate, under the Security Documents or any award for or the proceeds from any of the Collateral being taken not required to be paid into to the Asset Sale Proceeds AccountTrustee or the Collateral Agent under Section 12.05 hereof, as the case may be;
(iv) that there is no outstanding Indebtedness indebtedness or other obligation, other than costs for which payment is being requested, known to the IssuerCompany, after due inquiry, for the purchase price or construction of such repairs, rebuildings or replacements, or for labor, wages, materials or supplies in connection with the making thereof, which, if unpaid, might become the basis of a vendor’s's, mechanics’', laborer’s's, materialmen’s 's, statutory or other similar Lien upon any of such repairs, rebuildings or replacement, which Lien might, in the opinion of the signers of such certificate, materially impair the security afforded by such repairs, rebuildings or replacement;
(v) that the Property property to be repaired, rebuilt or replaced is necessary or desirable in the conduct of the Issuer’s Company's or the applicable Subsidiary’s Guarantors' business;
(vi) whether any part of such repairs, rebuildings or replacements, within six months before the date of acquisition thereof by the Company or a Guarantor, has been used or operated by others other than the Company or such Guarantor in a business similar to that in which such property has been or is to be used or operated by the Company or such Guarantor, and whether the fair value to the Company or such Guarantor, at the date of such acquisition, of such part of such repairs, rebuildings or replacement is at least $100,000 and 1.00% of the aggregate principal amount of the outstanding Securities; and, if all such facts are present, such part of said repairs, rebuildings or replacements shall be separately described, and it shall be stated that an Appraiser's certificate as to the fair value to the Company or such Guarantor of such separately described repairs, rebuildings or replacements will be furnished under the following subsection (b) of this Section 12.03;
(vii) that no Default or Event of Default shall have occurred and be continuing, unremedied and unwaived;
(viiviii) that the Trust Moneys that will remain after such withdrawal will be sufficient to complete the repair, rebuilding or replacement of the Property property destroyed, damaged or taken; and
(viiiix) that all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and.
(b) an Opinion In case any part of Counsel substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the applicable requirements of this Indenture and the Security Documents, and that, upon the basis of such request by the Issuer and the accompanying documents specified in this Section 9.03, all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; and
(ii) that the Global Security Agreement or the other Security Document, if any, will create a valid security interest in such repairs, rebuildings or replacements. Upon compliance with replacements is separately described pursuant to the foregoing provisions paragraph (vi) of subsection (a) of this Section 9.03Section, the Trustee shall pay on Issuer Request a certificate of an amount of Trust Moneys of the character aforesaid equal to the amount of the expenditures or costs stated in the Officers’ Certificate delivered pursuant to Section 9.03(a) hereof, or Appraiser stating the fair value to the Issuer Company or the applicable Restricted Subsidiary thereof Guarantor, in such Appraiser's opinion, of such separately described repairs, rebuildings and or replacements stated in at the date of the acquisition thereof by the Company or such Officers’ Certificate, whichever is lessGuarantor.
Appears in 1 contract
