Substitute Collateral. (a) The Company may, at its option, obtain a release of any of the Moveable Assets Collateral and the Trustee shall release and direct the Collateral Agent to release the related Collateral, provided that: (i) the Company subjects other similar (that is performs the same functions with like capabilities) moveable assets related to or used or to be used in the Plant ("Substitute Collateral") to the Liens of the Security Documents (which shall be a first priority perfected Lien unless otherwise contemplated by the Security Documents); (ii) such Substitute Collateral has a fair market value greater than or equal to the fair market value of the Collateral to be released and the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to the Moveable Assets Collateral to be released; (iii) the Company delivers to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent): (1) an application of the Company requesting such substitution of Substitute Collateral for any of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefor; (2) an Officer's Certificate (A) with respect to the matters set forth in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied with, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided that the Officer's Certificate shall also be signed, in the case of clause (ii) by an Independent Appraiser; and (B) stating that any Lien on the Substitute Collateral prior to the Liens of the Security Documents on the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security Documents; (3) an Opinion of Counsel substantially to the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens of the Security Documents constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted Lien on such Substitute Collateral, and (E) all conditions precedent herein relating to the release of such Collateral have been complied with; (4) any instrument required by the Opinion of Counsel to be rendered pursuant to clause (iii) (3) of this Section 12.07 for the Lien of any other applicable Security Document to cover the Substitute Collateral and any other property received in connection with such transaction; (5) original title documents and other evidence of ownership with respect to the Substitute Collateral are delivered to the Collateral Agent; and (6) evidence of payment or a closing statement indicating payments have been made (or will be made concurrently with the release and substitution of Collateral) by the Company of all filing fees, recording charges, transfer taxes a 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 the Substitute Collateral to the Lien of any Security Document. (b) In connection with any release, the Company shall (i) execute, deliver and record or file and obtain such instruments as shall be necessary to evidence, effect or give notice of such release and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement and this Indenture and (ii) deliver to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other Security Document as the Trustee may reasonably require. (c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution Notice"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant. (d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h). (e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held by the Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement. (f) Any release and substitution of Collateral made in strict compliance with the provisions of this Section 12.07 shall be deemed not to impair the Liens of the Security Documents in contravention of the provisions of this Indenture. (g) This Section does not limit the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 or any other Section. This Section is intended to be used for transactions which are primarily a substitution of like Collateral, as opposed to a sale of Collateral.
Appears in 1 contract
Sources: Indenture (Pt Polytama Propindo)
Substitute Collateral. (a) The Company or any other Pledgor may, at its option, obtain a release of any of the Moveable Assets Collateral and (including any Trust Moneys (other than Trust Moneys representing Net Cash Proceeds which are required to be used to redeem Notes pursuant to Section 4.13) but excluding the Trustee shall release and direct the Collateral Agent to release the related Collateral, provided that:
(i) Capital Stock of the Company subjects or of any of the Restricted Subsidiaries) by subjecting other similar (that is performs the same functions with like capabilities) moveable assets property related to or used or to be used in the Plant principal businesses of the Company and the Restricted Subsidiaries, if such substitute property (the "Substitute Collateral") has a Fair Market Value equal to or greater than the Collateral to be released, to the Liens Lien of the any Security Documents (which shall be Document or a first priority perfected Lien unless otherwise contemplated by the Security Documents);
(ii) such Substitute Collateral has a fair market value greater than or equal to the fair market value similar instrument in place of and in exchange for any of the Collateral to be released upon presentation to the Collateral Agent and the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to Trustee of, among other things, the Moveable Assets Collateral to be released;following documents:
(iii) the Company delivers to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent):
(1a) an application of the Company applicable Pledgor requesting such substitution of Substitute Collateral for any of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefortherefore;
(2b) the resolutions, certificates, opinions and other statements required by the provisions of Section 11.4, as applicable, in respect of any of the Collateral to be released;
(c) an Officer's Officers' Certificate (A) with respect of the applicable Pledgor also signed by an Independent Appraiser or, if the property to be released consists of securities, by an Independent Financial Advisor stating in substance the matters set forth Fair Market Value, in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied with, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided that signers, of the Officer's Certificate shall also be signed, Substitute Collateral;
(d) an instrument or instruments in recordable form sufficient for the Lien of the Security Documents to cover the Substitute Collateral;
(e) in the case of clause (ii) by an Independent Appraiser; and (B) stating that any Lien on the Substitute Collateral prior to the Liens of the Security Documents on the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security Documents;
(3) an Opinion of Counsel substantially to the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens of the Security Documents which constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted Lien on such Substitute Collateral, and (E) all conditions precedent herein relating to the release of such Collateral have been complied with;
(4) any instrument required by the Opinion of Counsel to be rendered pursuant to clause (iii) (3) of this Section 12.07 for the Lien of any other applicable Security Document to cover the Substitute Collateral and any other property received in connection with such transaction;
(5) original title documents and other evidence of ownership with respect to the Substitute Collateral are delivered to the Collateral Agent; and
(6) evidence of payment or a closing statement indicating payments have been made (or will be made concurrently with the release and substitution of Collateral) by the Company of all filing fees, recording charges, transfer taxes a 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 the Substitute Collateral to the Lien of any Security Document.
(b) In connection with any release, the Company shall (i) execute, deliver and record or file and obtain such instruments as shall be necessary to evidence, effect or give notice of such release and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement and this Indenture and (ii) deliver to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other Security Document as the Trustee may reasonably require.
(c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution Notice"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h).
(e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held by the Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement.
(f) Any release and substitution of Collateral made in strict compliance with the provisions of this Section 12.07 shall be deemed not to impair the Liens of the Security Documents in contravention of the provisions of this Indenture.
(g) This Section does not limit the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 or any other Section. This Section is intended to be used for transactions which are primarily a substitution of like Collateral, as opposed to a sale of Collateral.property:
Appears in 1 contract
Sources: Indenture (Blue Steel Capital Corp)
Substitute Collateral. (a) The Company may, at its option, obtain a release of any of the Moveable Assets Collateral and the Trustee shall release and direct the Collateral Agent to release the related Collateral, provided that:
(i) the Company subjects other similar (that is performs the same functions with like capabilities) moveable assets related to or used or to be used in the Plant ("Substitute Collateral") to the Liens of the Security Documents (which shall be a first priority perfected Lien unless otherwise contemplated by the Security Documents);
(ii) such Substitute Collateral has a fair market value greater than or equal to the fair market value of the Collateral to be released and the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to the Moveable Assets Collateral to be released;
(iii) the Company delivers to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent):
(1) an application of the Company requesting such substitution of Substitute Collateral for any of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefor;
(2) an Officer's Certificate (A) with respect to the matters set forth in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied with, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided PROVIDED that the Officer's Certificate shall also be signed, in the case of clause (ii) by an Independent Appraiser; and (B) stating that any Lien on the Substitute Collateral prior to the Liens of the Security Documents on the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security Documents;
(3) an Opinion of Counsel substantially to the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens of the Security Documents constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted Lien on such Substitute Collateral, and (E) all conditions precedent herein relating to the release of such Collateral have been complied with;
(4) any instrument required by the Opinion of Counsel to be rendered pursuant to clause (iii) (3) of this Section 12.07 for the Lien of any other applicable Security Document to cover the Substitute Collateral and any other property received in connection with such transaction;
(5) original title documents and other evidence of ownership with respect to the Substitute Collateral are delivered to the Collateral Agent; and
(6) evidence of payment or a closing statement indicating payments have been made (or will be made concurrently with the release and substitution of Collateral) by the Company of all filing fees, recording charges, transfer taxes a 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 the Substitute Collateral to the Lien of any Security Document.
(b) In connection with any release, the Company shall (i) execute, deliver and record or file and obtain such instruments as shall be necessary to evidence, effect or give notice of such release and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement and this Indenture and (ii) deliver to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other Security Document as the Trustee may reasonably require.
(c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution NoticeSUBSTITUTION NOTICE"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h).
(e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held by the Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement.
(f) Any release and substitution of Collateral made in strict compliance with the provisions of this Section 12.07 shall be deemed not to impair the Liens of the Security Documents in contravention of the provisions of this Indenture.
(g) This Section does not limit the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 or any other Section. This Section is intended to be used for transactions which are primarily a substitution of like Collateral, as opposed to a sale of Collateral.
Appears in 1 contract
Sources: Indenture (Pt Polytama Propindo)
Substitute Collateral. (a) The Company or any other Pledgor may, at its option, obtain a release of any of the Moveable Assets Collateral and (excluding the Trustee shall release and direct the Collateral Agent to release the related Collateral, provided that:
(i) Capital Stock of the Company subjects or of any of the Restricted Subsidiaries but including (x) any Trust Moneys (other similar than Trust Moneys representing Net Cash Proceeds which are required or may, through the passage of time or otherwise, possibly be required to be used to purchase or redeem Securities pursuant to Section 4.13) and (that is performs the same functions with like capabilitiesy) moveable assets any Trust Moneys representing Net Cash Proceeds to be applied to a Permitted Related Acquisition) by subjecting other property related to or used or to be used in the Plant principal businesses of the Company and the Restricted Subsidiaries, if such substitute property (the "Substitute Collateral") has a Fair Market Value equal to or greater than the Collateral to be released, to the Liens Lien of the any Security Documents (which shall be Document or a first priority perfected Lien unless otherwise contemplated by the Security Documents);
(ii) such Substitute Collateral has a fair market value greater than or equal to the fair market value similar instrument in place of and in exchange for any of the Collateral to be released upon presentation to the Collateral Agent and the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to Trustee of, among other things, the Moveable Assets Collateral to be released;following documents:
(iii) the Company delivers to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent):
(1a) an application of the Company applicable Pledgor requesting such substitution of Substitute Collateral for any of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefor;
(2b) the resolutions, certificates, opinions and other statements required by the provisions of Section 11.4, as applicable, in respect of any of the Collateral to be released;
(c) an Officer's Officers' Certificate (A) with respect of the applicable Pledgor also signed by an Independent Appraiser or, if the property to be released consists of securities, by an Independent Financial Advisor stating in substance the matters set forth Fair Market Value, in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied with, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided that signers, of the Officer's Certificate shall also be signed, Substitute Collateral;
(d) an instrument or instruments in recordable form sufficient for the Lien of the Security Documents to cover the Substitute Collateral;
(e) in the case of clause (ii) by an Independent Appraiser; and (B) stating that any Lien on the Substitute Collateral prior to the Liens of the Security Documents on the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security Documents;which constitutes personal property:
(31) an Opinion of Counsel substantially to stating that the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens Lien of the Security Documents constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted direct and valid and perfected Lien on such Substitute Collateral, and (E) all conditions precedent herein relating to the release of such Collateral have been complied with;
(42) an Officers' Certificate of the Company stating that any instrument required by specific exceptions to such Lien are Liens of the Opinion of Counsel character which were permitted to be rendered pursuant to clause (iii) (3) of this Section 12.07 for Prior Liens under the Lien of any other applicable Security Document to cover the Substitute Collateral and any other property received in connection with such transaction;
(5) original title documents and other evidence of ownership Documents with respect to the Collateral being replaced by such Substitute Collateral are delivered to the Collateral AgentCollateral; and
(63) evidence of payment or a closing statement indicating payments have been made (or will to be made concurrently with the release and substitution of Collateral) by the Company applicable Pledgor of all filing fees, recording charges, transfer taxes a and other costs and expenses, including reasonable legal fees and disbursements of counsel for the Collateral Agent and the Trustee (and any local counsel) that may be incurred to validly and effectively subject the Substitute Collateral such personal property to the Lien of any applicable Security Document.Document to perfect such Liens;
(bf) In connection in the case of Substitute Collateral which constitutes Real Property:
(1) a policy of title insurance (or a commitment to issue title insurance) insuring that the Lien of the Security Documents constitutes a direct and valid and per- fected mortgage Lien on such Substitute Collateral (subject to no Liens other than Liens which were permitted under the Security Documents with respect to the Collateral being replaced by such Substitute Collateral) in an aggregate amount equal to the Fair Market Value of such Substitute Collateral and containing such endorsements and other opinions as contemplated by Section 11.2(b)(ii) of this Indenture or, in the event such Substitute Collateral is located in Canada, a title Opinion of Counsel acceptable in form and substance to the Collateral Agent;
(2) an Officers' Certificate of the Company stating that any specific exceptions to such title insurance or title opinion are Liens permitted to be on Collateral pursuant to the provisions of Section 4.11 or Prior Liens;
(3) a Survey with respect to such Real Property;
(4) a policy or certificate of insurance as required by any Mortgage relating to such Real Property, which policy or certificate shall bear mortgagee endorsements of the character required by such Mortgage;
(5) evidence of payment or a closing statement indicating payments to be made by the applicable Pledgor 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 the Trustee (and any local counsel) that may be incurred to validly and effectively subject such Real Property to the Lien of any applicable Security Document to perfect such Lien;
(6) copies of all Leases (as defined in the Mortgages), all of which Leases shall be in conformance with any release, applicable provisions of the Security Documents;
(7) an Officers' Certificate of the Company shall stating that there has been issued and is in effect a valid and proper certificate of occupancy or local or foreign equivalent, if required by the local or foreign codes or ordinances for the use then being made of such Real Property and that there is not outstanding any citation, violation or similar notice indicating that such Real Property contains conditions which are not in compliance with local or foreign codes or ordinances relating to building or fire safety or structural soundness; and
(i) execute8) such consents, deliver and record approvals, amendments, supplements, estoppels, tenant subordination agreements or file and obtain such other instruments as shall be necessary in order for the owner or holder of the fee interest to evidence, effect or give notice grant the Lien contemplated by the Mortgage with respect to such Real Property; and
(g) Opinion(s) of Counsel in each jurisdiction in which such release Substitute Collateral is located substantially in the form of the local counsel opinions delivered on the Issue Date and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement otherwise in form and this Indenture and (ii) deliver substance satisfactory to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other Security Document as the Trustee may reasonably require.
(c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution Notice"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement re- spect to the effect that no Default or Event of Default has occurred documents executed and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h).
(e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held delivered by the applicable Pledgor and the Substitute Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement.
(f) Any release and substitution of Collateral made in strict compliance with encumbered thereby. Whenever the provisions of this Section 12.07 shall be deemed not to impair the Liens Indenture require a determination of the Security Documents Secured Creditors' relative priorities in contravention property or assets which are to be substituted as Collateral for property or assets being released which are (x) comprised of more than one Category of Collateral and (y) any particular Class of Secured Creditors has a priority claim under the provisions terms of this Indenture.
(g) This Section does not limit such Intercreditor Agreement with respect to one such Category of Collateral that is different from any other such Category of Collateral, the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 Company or any other SectionPledgor may rely upon an opinion of an Independent Appraiser or, to the extent the relevant property or assets consists, in whole or in part, of securities, an Independent Financial Advisor, to value the Collateral to be released and the property or assets to be substituted, determine the relative Fair Market Values of the different Categories of the Collateral to be released and use that as a basis for allocating priorities (which shall be accomplished through percentage allocations) in the property or assets to be substituted; provided that, if the foregoing is impractical to accomplish the intended purposes, in the opinion of counsel to the Company or such Independent Appraiser or Independent Financial Advisor, then no substitution shall be permitted pursuant to clause (i)(A) of Section 11.5(d). This In determining relative Fair Market Values pursuant to this paragraph, the Independent Financial Advisor and/or Independent Appraiser shall make its determination of the Fair Market Value of each Category of Collateral to be released assuming each such Category of Collateral was separate and unrelated to any other Category of Collateral being released. The percentage determinations referred to in clause (i)(A) of Section 11.5(d) shall be made as follows: The Trustee and the holders of the Securities shall have an aggregate interest of 100% in the Substitute Collateral which shall be allocated, by percentage, among the various priorities in the Substitute Collateral on a basis that is intended to reflect the priorities of the Trustee and the holders of the Securities in the Collateral being released. The percentage interest of the Trustee and the holders of the Securities assigned to any particular priority level shall be used for transactions obtained by dividing the Fair Market Value of all Categories of Collateral being released in which the Trustee and holders of the Securities are primarily a substitution entitled to that particular priority under the terms of like Collateral, as opposed to a sale the applicable Intercreditor Agreement by the Fair Market Value of Collateralall of the Collateral being released.
Appears in 1 contract
Sources: Indenture (Rti Capital Corp)
Substitute Collateral. (a) The Company may, at its option, obtain a release of any of the Moveable Assets Collateral and the Trustee shall release and direct the Collateral Agent to release the related Collateral, provided that:: 66
(i) the Company subjects other similar (that is performs the same functions with like capabilities) moveable assets related to or used or to be used in the Plant ("Substitute CollateralSUBSTITUTE COLLATERAL") to the Liens of the Security Documents (which shall be a first priority perfected Lien unless otherwise contemplated by the Security Documents);
(ii) such Substitute Collateral has a fair market value greater than or equal to the fair market value of the Collateral to be released and the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to the Moveable Assets Collateral to be released;
(iii) the Company delivers to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent):
(1) an application of the Company requesting such substitution of Substitute Collateral for any of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefor;
(2) an Officer's Certificate (A) with respect to the matters set forth in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied with, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided PROVIDED that the Officer's Certificate shall also be signed, in the case of clause (ii) by an Independent Appraiser; and (B) stating that any Lien on the Substitute Collateral prior to the Liens of the Security Documents on the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security Documents;
(3) an Opinion of Counsel substantially to the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens of the Security Documents constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted Lien on such Substitute Collateral, and (E) all conditions precedent herein relating to the release of such Collateral have been complied with;
(4) any instrument required by the Opinion of Counsel to be rendered pursuant to clause (iii) (3) of this Section 12.07 for the Lien of any other applicable Security Document to cover the Substitute Collateral and any other property received in connection with such transaction;
(5) original title documents and other evidence of ownership with respect to the Substitute Collateral are delivered to the Collateral Agent; and
(6) evidence of payment or a closing statement indicating payments have been made (or will be made concurrently with the release and substitution of Collateral) by the Company of all filing fees, recording charges, transfer taxes a 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 the Substitute Collateral to the Lien of any Security Document.
(b) In connection with any release, the Company shall (i) execute, deliver and record or file and obtain such instruments as shall be necessary to evidence, effect or give notice of such release and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement and this Indenture and (ii) deliver to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other Security Document as the Trustee may reasonably require.
(c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution NoticeSUBSTITUTION NOTICE"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h).
(e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held by the Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement.
(f) Any release and substitution of Collateral made in strict compliance with the provisions of this Section 12.07 shall be deemed not to impair the Liens of the Security Documents in contravention of the provisions of this Indenture.
(g) This Section does not limit the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 or any other Section. This Section is intended to be used for transactions which are primarily a substitution of like Collateral, as opposed to a sale of Collateral.
Appears in 1 contract
Sources: Indenture (Pt Polytama Propindo)
Substitute Collateral. (a) The Company may, at its option, obtain a release of any of the Moveable Assets Collateral and the Trustee shall release and direct the Collateral Agent to release the related Collateral, provided that:
(i) the Company subjects other similar (that is performs the same functions with like capabilities) moveable assets related to or used or to be used in the Plant ("Substitute Collateral") to the Liens of the Security Documents (which shall be a first priority perfected Lien unless otherwise contemplated by the Security Documents);
(ii) such Substitute Collateral has a fair market value greater than or equal to the fair market value of the Collateral to be released and the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to the Moveable Assets Collateral to be released;
(iii) the Company delivers to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent):
(1) an application of the Company requesting such substitution of Substitute Collateral for any of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefor;
(2) an Officer's Certificate (A) with respect to the matters set forth in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied with, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided that the Officer's Certificate shall also be signed, in the case of clause (ii) by an Independent Appraiser; and (B) stating that any Lien on the Substitute Collateral prior to the Liens of the Security Documents on the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security Documents;
(3) an Opinion of Counsel substantially to the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens of the Security Documents constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted Lien on such Substitute Collateral, and (E) all conditions precedent herein relating to the release of such Collateral have been complied with;
(4) any instrument required by the Opinion of Counsel to be rendered pursuant to clause (iii) (3) of this Section 12.07 for the Lien of any other applicable Security Document to cover the Substitute Collateral and any other property received in connection with such transaction;
(5) original title documents and other evidence of ownership with respect to the Substitute Collateral are delivered to the Collateral Agent; and
(6) evidence of payment or a closing statement indicating payments have been made (or will be made concurrently with the release and substitution of Collateral) by the Company of all filing fees, recording charges, transfer taxes a 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 the Substitute Collateral to the Lien of any Security Document.
(b) In connection with any release, the Company shall (i) execute, deliver and record or file and obtain such instruments as shall be necessary to evidence, effect or give notice of such release and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement and this Indenture and (ii) deliver to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other Security Document as the Trustee may reasonably require.
(c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution Notice"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h).
(e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held by the Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement.
(f) Any release and substitution of Collateral made in strict compliance with the provisions of this Section 12.07 shall be deemed not to impair the Liens of the Security Documents in contravention of the provisions of this Indenture.
(g) This Section does not limit the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 or any other Section. This Section is intended to be used for transactions which are primarily a substitution of like Collateral, as opposed to a sale of Collateral.
Appears in 1 contract
Sources: Indenture (Pt Polytama Propindo)
Substitute Collateral. (a) The Company may, at its option, obtain a release of any of the Moveable Assets Collateral and the Trustee shall release and direct the Collateral Agent to release the related Collateral, provided that:
(i) the Company subjects constituting Equipment by subjecting other similar (that is performs the same functions with like capabilities) moveable assets related to or Equipment used or to be used in the Plant business of the Company to the Lien of any Security Document or a similar instrument in place of and in exchange for any of the Collateral to be released, if such substitute Equipment has a fair value equal to or greater than the Collateral to be released ("Substitute Collateral") to the Liens of the Security Documents (which shall be a first priority perfected Lien unless otherwise contemplated by the Security Documents);
(ii) such Substitute Collateral has a fair market value greater than or equal to the fair market value of the Collateral to be released and the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to the Moveable Assets Collateral to be released;
(iii) the Company delivers , upon presentation to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent):following documents:
(1a) an application of the Company requesting such substitution of Substitute Collateral for any of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefor;
(2b) the resolutions, certificates, opinions and other statements required by the provisions of Section 10.4 (other than Section 10.4(b)(1)), as applicable, in respect of any of the Collateral to be released;
(c) an Officer's Certificate (A) with respect to the matters set forth in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied withOfficers' Certificate, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided that the Officer's Certificate shall also be signed, in the case of clause (ii) signed by an Independent Appraiser; and (B) , stating that any Lien on in substance the Fair Market Value, in the opinion of the signers, of the Substitute Collateral prior and the Collateral to be released;
(d) an instrument or instruments in recordable form sufficient for the Liens Lien of the Security Documents on to cover the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security DocumentsCollateral;
(3e) an Opinion of Counsel substantially to stating that the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens Lien of the Security Documents constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted valid and perfected Lien on such Substitute Collateral, Collateral and (E) all conditions precedent herein relating to the release of such Collateral have been complied with;
(4) any instrument required by the Opinion an opinion of Counsel to be rendered pursuant to clause (iii) (3) of this Section 12.07 for in the Lien of any other applicable Security Document to cover jurisdiction in which the Substitute Collateral is located substantially in the form of the local counsel opinions delivered on the Closing Date and any other property received otherwise in connection with such transaction;
(5) original title documents form and other evidence of ownership substance satisfactory to the Trustee with respect to the documents executed and delivered by the Company and the Substitute Collateral encumbered thereby; 150
(f) an Officers' Certificate of the Company stating that (i) any specific exceptions to such Lien are delivered Liens of the character which were permitted to be Prior Liens under the Security Documents with respect to the Collateral Agentbeing replaced by such Substitute Collateral and (ii) the Fair Market Value of all Collateral released pursuant to this Section 10.5 during the then current calendar year does not exceed in the aggregate $10,000,000; and
(6g) evidence of payment or a closing statement indicating payments have been made (or will to be made concurrently with the release and substitution of Collateral) by the Company of all filing fees, recording charges, transfer taxes a 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 the such Substitute Collateral to the Lien of any Security Document.
(b) In connection with any release, the Company shall (i) execute, deliver and record or file and obtain such instruments as shall be necessary to evidence, effect or give notice of such release and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement and this Indenture and (ii) deliver to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other applicable Security Document as the Trustee may reasonably requireand to perfect such Liens.
(c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution Notice"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h).
(e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held by the Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement.
(f) Any release and substitution of Collateral made in strict compliance with the provisions of this Section 12.07 shall be deemed not to impair the Liens of the Security Documents in contravention of the provisions of this Indenture.
(g) This Section does not limit the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 or any other Section. This Section is intended to be used for transactions which are primarily a substitution of like Collateral, as opposed to a sale of Collateral.
Appears in 1 contract
Sources: Indenture (Toms Foods Inc)
Substitute Collateral. (a) The Company mayUpon request from Grantor, and at its optionGrantor's expense, obtain a Trustees shall release from the lien of this Deed of Trust any one or more of the Moveable Assets Collateral parcels constituting the Property, upon conveyance by Grantor and/or its affiliates of substitute collateral property (the "Substitute Collateral") from time to time, but not more than one time for each parcel, and not more than four times during the Trustee shall release duration the lien of this Deed of Trust, upon the following terms and direct subject to the Collateral Agent to release the related Collateral, provided thatfollowing conditions:
(i) the Company subjects other similar (that is performs quality of the same functions with like capabilities) moveable assets related Substitute Collateral shall be comparable to or used or to be used in the Plant ("Substitute Collateral") to the Liens greater than that of the Security Documents (parcel of Property for which shall be a first priority perfected Lien unless otherwise contemplated by the Security Documents)Substitute Collateral is replacing the current-to-be-released Property;
(ii) such No Event of Default shall exist under this Deed of Trust or any other Loan Document;
(iii) The appraised value of the Substitute Collateral has a fair market shall be equal to or greater than the greater of (A) the appraised value of current-to-be-released Property, as determined at the time of the closing of the substitution of collateral, or (B) the appraised value of the current-to-be released Property at the time of such substitution;
(iv) the Debt Service Coverage Ratio (as defined below) for the aggregate Property (inclusive of the Substitute Collateral) shall be greater than or equal to the fair market value actual Debt Service Coverage Ratio for the aggregate Property (inclusive of the Collateral to current-to-be released Property), for the one year prior to the substitution, and Grantor shall execute and deliver appropriate amendments to this Deed of Trust and Loan Documents making the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to the Moveable Assets Collateral to be released;
(iii) the Company delivers to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent):
(1) an application part of the Company requesting security for the Guaranty, and Lender shall have received such substitution title assurances and endorsements to its then-existing policies confirming the priority of Substitute Collateral for any its lien under this Deed of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefor;
(2) an Officer's Certificate (A) with respect to the matters set forth in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied with, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided that the Officer's Certificate shall also be signed, in the case of clause (ii) by an Independent Appraiser; and (B) stating that any Lien Trust on the Substitute Collateral prior to the Liens of the Security Documents on the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security Documents;
(3) an Opinion of Counsel substantially to the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens of the Security Documents constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted Lien on such Substitute Collateral, and (E) all conditions precedent herein relating consenting to the release of such the released Property, and otherwise confirming no adverse changes in title coverage or the amount thereof.
(v) the Substitute Collateral shall satisfy each of the covenants and conditions to closing set forth in the commitment letter with the Lender for the Loan guaranteed under the Guaranty, that would have been complied withapplicable had such Substitute Collateral been an original parcel of the Property;
(4vi) any instrument required by the Opinion of Counsel to be rendered pursuant to clause (iii) (3) of this Section 12.07 for the Lien of any other applicable Security Document to cover the Substitute Collateral shall conform in all respects to such other underwriting standards and any criteria of the Lender and criteria such as other property received appraisal, legal, business, environmental, engineering, diversification, leasing or title requirements, all as Lender may determine in connection with such transaction;
(5) original title documents and other evidence of ownership with respect to the Substitute Collateral are delivered to the Collateral Agent; and
(6) evidence of payment or a closing statement indicating payments have been made (or will be made concurrently with the release and substitution of Collateral) by the Company of all filing fees, recording charges, transfer taxes a 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 the Substitute Collateral to the Lien of any Security Document.
(b) In connection with any releaseits sole discretion. As used herein, the Company following defined term shall (i) execute, deliver and record or file and obtain such instruments as shall be necessary to evidence, effect or give notice of such release and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement and this Indenture and (ii) deliver to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other Security Document as the Trustee may reasonably require.
(c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution Notice"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h).
(e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held by the Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement.
(f) Any release and substitution of Collateral made in strict compliance with the provisions of this Section 12.07 shall be deemed not to impair the Liens of the Security Documents in contravention of the provisions of this Indenture.
(g) This Section does not limit the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 or any other Section. This Section is intended to be used for transactions which are primarily a substitution of like Collateral, as opposed to a sale of Collateral.:
Appears in 1 contract
Substitute Collateral. (a) The Company mayUpon request from Grantor, and at its optionGrantor’s expense, obtain a Trustees shall release from the lien of this Deed of Trust any one or more of the Moveable Assets Collateral parcels constituting the Property, upon conveyance by Grantor and/or its affiliates of substitute collateral property (the “Substitute Collateral”) from time to time, but not more than one time for each parcel, and not more than four times during the Trustee shall release duration the lien of this Deed of Trust, upon the following terms and direct subject to the Collateral Agent to release the related Collateral, provided thatfollowing conditions:
(i) the Company subjects other similar (that is performs quality of the same functions with like capabilities) moveable assets related Substitute Collateral shall be comparable to or used or to be used in the Plant ("Substitute Collateral") to the Liens greater than that of the Security Documents (parcel of Property for which shall be a first priority perfected Lien unless otherwise contemplated by the Security Documents)Substitute Collateral is replacing the current-to-be-released Property;
(ii) such No Event of Default shall exist under this Deed of Trust or any other Loan Document;
(iii) The appraised value of the Substitute Collateral has a fair market shall be equal to or greater than the greater of (A) the appraised value of current-to-be-released Property, as determined at the time of the closing of the substitution of collateral, or (B) the appraised value of the current-to-be released Property at the time of such substitution;
(iv) the Debt Service Coverage Ratio (as defined below) for the aggregate Property (inclusive of the Substitute Collateral) shall be greater than or equal to the fair market value actual Debt Service Coverage Ratio for the aggregate Property (inclusive of the Collateral to current-to-be released Property), for the one year prior to the substitution, and Grantor shall execute and deliver appropriate amendments to this Deed of Trust and Loan Documents making the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to the Moveable Assets Collateral to be released;
(iii) the Company delivers to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent):
(1) an application part of the Company requesting security for the Guaranty, and Lender shall have received such substitution title assurances and endorsements to its then-existing policies confirming the priority of Substitute Collateral for any its lien under this Deed of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefor;
(2) an Officer's Certificate (A) with respect to the matters set forth in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied with, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided that the Officer's Certificate shall also be signed, in the case of clause (ii) by an Independent Appraiser; and (B) stating that any Lien Trust on the Substitute Collateral prior to the Liens of the Security Documents on the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security Documents;
(3) an Opinion of Counsel substantially to the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens of the Security Documents constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted Lien on such Substitute Collateral, and (E) all conditions precedent herein relating consenting to the release of such the released Property, and otherwise confirming no adverse changes in title coverage or the amount thereof.
(v) the Substitute Collateral shall satisfy each of the covenants and conditions to closing set forth in the commitment letter with the Lender for the Loan guaranteed under the Guaranty, that would have been complied withapplicable had such Substitute Collateral been an original parcel of the Property;
(4vi) any instrument required by the Opinion of Counsel to be rendered pursuant to clause (iii) (3) of this Section 12.07 for the Lien of any other applicable Security Document to cover the Substitute Collateral shall conform in all respects to such other underwriting standards and any criteria of the Lender and criteria such as other property received appraisal, legal, business, environmental, engineering, diversification, leasing or title requirements, all as Lender may determine in connection with such transaction;
(5) original title documents and other evidence of ownership with respect to the Substitute Collateral are delivered to the Collateral Agent; and
(6) evidence of payment or a closing statement indicating payments have been made (or will be made concurrently with the release and substitution of Collateral) by the Company of all filing fees, recording charges, transfer taxes a 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 the Substitute Collateral to the Lien of any Security Document.
(b) In connection with any releaseits sole discretion. As used herein, the Company following defined term shall (i) execute, deliver and record or file and obtain such instruments as shall be necessary to evidence, effect or give notice of such release and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement and this Indenture and (ii) deliver to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other Security Document as the Trustee may reasonably require.
(c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution Notice"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h).
(e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held by the Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement.
(f) Any release and substitution of Collateral made in strict compliance with the provisions of this Section 12.07 shall be deemed not to impair the Liens of the Security Documents in contravention of the provisions of this Indenture.
(g) This Section does not limit the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 or any other Section. This Section is intended to be used for transactions which are primarily a substitution of like Collateral, as opposed to a sale of Collateral.:
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Substitute Collateral. (a) The Company mayUpon request from Grantor, and at its optionGrantor's expense, obtain a Trustees shall release from the lien of this Deed of Trust any one or more of the Moveable Assets Collateral parcels constituting the Property, upon conveyance by Grantor and/or its affiliates of substitute collateral property (the "Substitute Collateral") from time to time, but not more than one time for each parcel, and not more than three times during the Trustee shall release duration the lien of this Deed of Trust, upon the following terms and direct subject to the Collateral Agent to release the related Collateral, provided thatfollowing conditions:
(i) the Company subjects other similar (that is performs quality of the same functions with like capabilities) moveable assets related Substitute Collateral shall be comparable to or used or to be used in the Plant ("Substitute Collateral") to the Liens greater than that of the Security Documents (parcel of Property for which shall be a first priority perfected Lien unless otherwise contemplated by the Security Documents)Substitute Collateral is replacing the current-to-be-released Property;
(ii) such No Event of Default shall exist under this Deed of Trust or any other Loan Document;
(iii) The appraised value of the Substitute Collateral has a fair market shall be equal to or greater than the greater of (A) the appraised value of current-to-be-released Property, as determined at the time of the closing of the substitution of collateral, or (B) the appraised value of the current-to-be released Property at the time of such substitution;
(iv) the Debt Service Coverage Ratio (as defined below) for the aggregate Property (inclusive of the Substitute Collateral) shall be greater than or equal to the fair market value actual Debt Service Coverage Ratio for the aggregate Property (inclusive of the Collateral to current-to-be released Property), for the one year prior to the substitution, and Grantor shall execute and deliver appropriate amendments to this Deed of Trust and Loan Documents making the Substitute Collateral is not subject to Permitted Liens securing Indebtedness greater than any Permitted Liens with respect to the Moveable Assets Collateral to be released;
(iii) the Company delivers to the Trustee (or in case of clause (4) and (5) below, the Collateral Agent):
(1) an application part of the Company requesting security for the Guaranty, and Lender shall have received such substitution title assurances and endorsements to its then-existing policies confirming the priority of Substitute Collateral for any its lien under this Deed of the Moveable Assets Collateral and describing the property to be so released and the property that is related to or used or to be used in the Plant to be substituted therefor;
(2) an Officer's Certificate (A) with respect to the matters set forth in paragraphs (i) through (iii) above and stating that all conditions precedent herein relating to the release and substitution of Collateral have been complied with, provided that matters set forth in paragraph (ii) may be an opinion of the Officer; provided that the Officer's Certificate shall also be signed, in the case of clause (ii) by an Independent Appraiser; and (B) stating that any Lien Trust on the Substitute Collateral prior to the Liens of the Security Documents on the Substitute Collateral are Liens of the character which, under the provisions of this Indenture, the Collateral Agency Agreement and the Security Documents, are permitted to be prior to the Liens of the Security Documents;
(3) an Opinion of Counsel substantially to the effect (subject to customary exceptions) that (A) either (x) such instruments of conveyance, assignment and transfer as have been or are then delivered to the Collateral Agent are sufficient to subject all the right, title and interest of the Company in and to the Substitute Collateral to the Liens of the applicable Security Documents (y) no instruments of conveyance, assignment or transfer are necessary for such purpose, (B) the Company has corporate power to own all Substitute Collateral, (C) the property so released is Moveable Assets Collateral, (D) each of Liens of the Security Documents constitutes a Lien which is not subordinate to any other Lien or security interest other than a Permitted Lien on such Substitute Collateral, and (E) all conditions precedent herein relating consenting to the release of such the released Property, and otherwise confirming no adverse changes in title coverage or the amount thereof.
(v) the Substitute Collateral shall satisfy each of the covenants and conditions to closing set forth in the commitment letter with the Lender for the Loan guaranteed under the Guaranty, that would have been complied withapplicable had such Substitute Collateral been an original parcel of the Property;
(4vi) any instrument required by the Opinion of Counsel to be rendered pursuant to clause (iii) (3) of this Section 12.07 for the Lien of any other applicable Security Document to cover the Substitute Collateral shall conform in all respects to such other underwriting standards and any criteria of the Lender and criteria such as other property received appraisal, legal, business, environmental, engineering, diversification, leasing or title requirements, all as Lender may determine in connection with such transaction;
(5) original title documents and other evidence of ownership with respect to the Substitute Collateral are delivered to the Collateral Agent; and
(6) evidence of payment or a closing statement indicating payments have been made (or will be made concurrently with the release and substitution of Collateral) by the Company of all filing fees, recording charges, transfer taxes a 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 the Substitute Collateral to the Lien of any Security Document.
(b) In connection with any releaseits sole discretion. As used herein, the Company following defined term shall (i) execute, deliver and record or file and obtain such instruments as shall be necessary to evidence, effect or give notice of such release and substitution or as the Trustee may reasonably require for such purpose, including, without limitation, amendments to the Security Documents, the Collateral Agency Agreement and this Indenture and (ii) deliver to the Trustee such evidence of the satisfaction of the requirements of this Indenture, the Collateral Agency Agreement and the other Security Document as the Trustee may reasonably require.
(c) The Company shall exercise its rights under this Section 12.07 by delivery to the Trustee of a notice (each, a "Substitution Notice"), which shall refer to this Section, describe with particularity the items of property proposed to be covered by the release and substitution and be accompanied by a counterpart of the instruments proposed to give effect to the release and substitution fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee, the other Secured Creditors and Secured Creditors' Representatives and in form for execution by the Trustee. Upon such compliance, the Company shall direct the Trustee to execute, acknowledge (if applicable) and deliver to the Company such counterpart within 20 Business Days after receipt by the Trustee of Substitution Notice and the satisfaction of the requiem of this covenant.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Company, while possession of the Collateral (other than Trust Monies, cash, cash equivalents, securities and other personal property held by or required to be deposited or pledged with the Collateral Agent or with the trustee, fiduciary, transferee or other holder of a prior Permitted Lien), may do any of the things enumerated in this Section 12.07 with respect such Collateral, if each of the holders, shall consent to such action. In such event, any certificate filed pursuant to this paragraph shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing (or would result therefrom). This paragraph shall not apply, however, during the continuance of an Event of Default of the type specified in Section 6.01(h).
(e) The Company shall cause all cash or Temporary Cash Investments received by it in connection with any substitution of property permitted hereby to be deposited with and held by the Collateral Agent as if such cash or Temporary Cash Investment were received in connection with an Asset Disposition upon the terms set forth in Section 4.08 and in the Collateral Agency Agreement.
(f) Any release and substitution of Collateral made in strict compliance with the provisions of this Section 12.07 shall be deemed not to impair the Liens of the Security Documents in contravention of the provisions of this Indenture.
(g) This Section does not limit the Company's rights to obtain the release of Moveable Assets Collateral under Section 12.05 or any other Section. This Section is intended to be used for transactions which are primarily a substitution of like Collateral, as opposed to a sale of Collateral.:
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