Trust Monies. Subject to the provisions of the Security Agreements and the other Security Documents, and only at any time that the Trustee is the Requisite Obligee: (A) to the extent that any Trust Monies consist of Net Loss Proceeds, such Trust Monies may be withdrawn by the Company and shall be paid by the Second Priority Collateral Agent, to the Company or the applicable Guarantor, upon the Company's written request delivered to the Second Priority Collateral Agent and the Trustee for expenditures made or to be made, or costs incurred or to be incurred, by the Company or the applicable Guarantor in accordance with the provisions of the first paragraph of Section 4.20 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 Monies, setting forth that: (i) such funds are being applied in accordance with the provisions of the first paragraph of Section 4.20 for the purposes identified and briefly described in such Officers' Certificate; (ii) no part of such expenditures or costs has been paid out of the proceeds of insurance upon any part of the Collateral not required to be paid to the Trustee under the Security Documents; (iii) the Company or the applicable Guarantor has or substantially concurrent therewith will have title to such repairs, rebuildings, replacements that is substantially similar to its title to the property destroyed, damaged or taken and that any Liens upon such repairs, rebuild-ings and replacements are expressly permitted by this Indenture and the applicable Security Documents; (iv) no Default or Event of Default shall have occurred and be continuing after giving effect to such application; and (v) all conditions precedent herein provided for relating to such withdrawal and payment have been complied with; (b) all documentation required under the TIA (including, without limitation, TIA § 314(d)); (c) all instruments sufficient, necessary or as reasonably requested by the Trustee, for the Lien of any applicable Security Document to cover such repairs, rebuildings or replacements; and (d) evidence of payment or a closing statement indicating payments to be made by the Company of all filing fees, recording charges and/or transfer taxes, if any, 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 Security Document; and (e) an Opinion of Counsel substantially stating: (i) that the instruments that have been or are therewith delivered to the Trustee conform to the requirements of this Indenture and the other Security Documents, and that, upon the basis thereof and the accompanying documents specified in this Section 11.13(A), all conditions precedent herein provided for relating to such withdrawal and payment have been complied with, and the Trust Monies whose withdrawal is then requested may be paid over under this Section 11.13(A); (ii) that the relevant Security Documents create a valid, binding and enforceable Lien on and security interest in such repairs, rebuildings and replacements in favor of the Trustee in favor of the Holders; and (iii) that all the Company's or the applicable Guarantor's right, title and interest in and to said repairs, rebuilding or replacements, or combination thereof are then subject to the Lien of this Indenture and the relevant Security Documents; and upon compliance with the foregoing provisions of this Section 11.13(A), the Trustee shall, upon receipt of a written request from the Company, pay, or instruct the Collateral Agent to pay, as applicable, an amount of Net Loss Proceeds constituting Trust Monies equal to the amount of the expenditures or costs stated in the Officers' Certificate required by clause (i) of paragraph (a) of this Section 11.13(A); (B) to the extent that any Trust Monies consist of Excess Net Loss Proceeds received by the Second Priority Collateral Agent pursuant to the provisions of Section 4.20 hereof and a Net Loss Proceeds Offer has been made in accordance therewith, such Trust Monies may be withdrawn by the Company and the Second Priority Collateral Agent shall pay the Paying Agent for application in accordance with Section 4.20 upon a notice from the Company to the Trustee (a "Company Notice") and upon receipt by the Trustee of the following: (a) an Officers' Certificate, dated not more than three days prior to the Net Loss Proceeds Offer Payment Date stating: (i) that no Default or Event of Default shall have occurred and be continuing after giving effect to such application; (ii) (x) that such Trust Monies constitute Excess Net Loss Proceeds, (y) that pursuant to and in accordance with Section 4.20, the Company has made a Net Loss Proceeds Offer and (z) the amount of Note Excess Net Loss Proceeds to be applied to the repurchase of Notes pursuant to the Net Loss Proceeds Offer; (iii) the Net Loss Proceeds Offer Payment Date; and (iv) that all conditions precedent and covenants herein provided for relating to such application of Trust Monies have been complied with; and (b) all documentation, if any, required under the TIA, including without limitation TIA § 314(d); and upon compliance with the foregoing provisions of this Section 11.13(B), the Second Priority Collateral Agent shall apply, as applicable, the Trust Monies as directed and specified by such Company Notice, subject to Section 4.20; (C) to the extent that any Trust Monies consist of Excess Net Cash Proceeds received by the Second Priority Collateral Agent pursuant to the provisions of Section 4.15 hereof and a Net Proceeds Offer has been made in accordance therewith, such Trust Monies may be withdrawn by the Company and the Second Priority Collateral Agent shall pay to the Paying Agent for application in accordance with Section 4.15 upon a Company Notice to the Trustee and upon receipt by the Trustee of the following: (a) an Officers' Certificate, dated not more than three Business Days prior to the Net Proceeds Offer Trigger Date stating: (i) that no Default or Event of Default shall have occurred and be continuing after giving effect to such application; (ii) (x) that such Trust Monies constitute Excess Net Cash Proceeds, (y) that pursuant to and in accordance with Section 4.15 hereof, the Company has made a Net Proceeds Offer and (z) the amount of Notes Excess Net Cash Proceeds to be applied to the repurchase of Notes pursuant to the Net Proceeds Offer; (iii) the Net Proceeds Offer Trigger Date; and (iv) that all conditions precedent and covenants herein provided for relating to such application of Trust Monies have been complied with; and (b) all documentation, if any, required under the TIA including without limitation TIA § 314(d); and upon compliance with the foregoing provisions of this Section 11.13(C), the Trustee shall apply or shall instruct the Collateral Agent to apply, as applicable, the Trust Monies as directed and specified by such Company Notice, subject to Section 4.15 hereof; and (D) in the event the Company intends to reinvest Net Cash Proceeds from an Asset Sale of Collateral in Replacement Assets or use the Net Cash Proceeds as provided in clause (1)(C) of the second paragraph of Section 4.15 ("Acquisition Assests") (the "Released Trust Monies"), such Net Cash Proceeds constituting Trust Monies may be withdrawn by the Company and the Second Priority Collateral Agent shall pay, as applicable, to the Company upon receipt by the Second Priority Collateral Agent and the Trustee of the following: (a) a written notice signed by the Company which shall (i) refer to this Section 11.13(D), (ii) contain all documents referred to below, (iii) describe with particularity the Released Trust Monies, (iv) describe with particularity the Replacement Assets or Acquisition Assets to be invested in with respect to the Released Trust Monies and (v) be accompanied by a counterpart of the instruments proposed to give effect to the release fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee; (b) an Officers' Certificate certifying that (i) such Trust Monies constitute Net Cash Proceeds, (ii) the release of the Released Trust Monies complies with the terms and conditions of this Indenture, (iii) there is no Default or Event of Default (both before and after investing in the Replacement Asset or the Acquisition Asset) in effect or continuing on the date thereof, (iv) the release of the Released Trust Monies shall not result in a Default or Event of Default hereunder and (v) all conditions precedent herein to such release have been complied with; (c) all documentation, if any, required under the TIA, including without limitation TIA § 314(d); (d) a Security Document or an amendment to an existing Security Document and such financing statements and other instruments, if any, necessary to create and perfect the Lien of any applicable Security Document on such Replacement Assets or the Acquisition Assets; (e) evidence of payment or a closing statement indicating payments to be made by the Company or the appropriate Guarantor of all filing fees, recording charges and/or transfer taxes, if any, and other costs and expenses, including reasonable legal fees and disbursements of one counsel for the Trustee (and any local counsel), that may be incurred to validly and effectively subject the Replacement Asset or the Acquisition Assets to the Lien of any Security Document; and (f) an Opinion of Counsel substantially to the effect: (i) that the documents that have been or are therewith delivered to the Trustee in connection with an investment in Replacement Assets or Acquisition Assets conform to the requirements of this Indenture and that all conditions precedent herein provided for relating to such application of Trust Monies have been complied with; and (ii) to the extent that such Replacement Assets or Acquisition Assets were acquired with Net Cash Proceeds, the relevant Security Documents create a valid, binding and enforceable Lien (subject only to Permitted Collateral Liens) on and security interest in such Replacement Assets or Acquisition Assets in favor of the Trustee for the benefit of the Holders; and upon compliance with the foregoing provisions of this Section 11.13(D), the Trustee shall apply or shall instruct the Second Priority Collateral Agent to apply the Released Trust Monies as directed and specified by the Company. If any conflict or inconsistency exists between this Section 11.13 and the Security Agreements or any other applicable Security Documents, the Security Agreements and the applicable Security Documents shall govern. ARTICLE TWELVE
Appears in 1 contract
Sources: Indenture (Huntsman Polymers Corp)
Trust Monies. Subject to the provisions of the Security Agreements Intercreditor Agreement and the other Security Documents, and only at any time that the Trustee is the Requisite Obligee:
(A) to the extent that any Trust Monies consist of Net Loss Proceeds, such Trust Monies may be withdrawn by the Company and shall be paid by the Second Priority Collateral Agent, Trustee to the Company or the applicable Guarantor, or the Trustee shall instruct the Collateral Agent to so pay, as applicable, upon the Company's written request delivered to the Second Priority Collateral Agent and the Trustee for expenditures made or to be made, or costs incurred or to be incurred, by the Company or the applicable Guarantor in accordance with the provisions of the first paragraph of Section 4.20 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 Monies, setting forth that:
(i) such funds are being applied in accordance with the provisions of the first paragraph of Section 4.20 for the purposes identified and briefly described in such Officers' Certificate;
(ii) no part of such expenditures or costs has been paid out of the proceeds of insurance upon any part of the Collateral not required to be paid to the Trustee under the Security Documents;
(iii) the Company or the applicable Guarantor has or substantially concurrent therewith will have title to such repairs, rebuildings, replacements that is substantially similar to its title to the property destroyed, damaged or taken and that any Liens upon such repairs, rebuild-ings rebuildings and replacements are expressly permitted by this Indenture and the applicable Security Documents;
(iv) no Default or Event of Default shall have occurred and be continuing after giving effect to such application; and
(v) all conditions precedent herein provided for relating to such withdrawal and payment have been complied with;
(b) all documentation required under the TIA (including, without limitation, TIA § 314(d));
(c) all instruments sufficient, necessary or as reasonably requested by the Trustee, for the Lien of any applicable Security Document to cover such repairs, rebuildings or replacements; and
(d) evidence of payment or a closing statement indicating payments to be made by the Company of all filing fees, recording charges and/or transfer taxes, if any, 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 Security Document; and
(e) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are therewith delivered to the Trustee conform to the requirements of this Indenture and the other Security Documents, and that, upon the basis thereof and the accompanying documents specified in this Section 11.13(A11.12(A), all conditions precedent herein provided for relating to such withdrawal and payment have been complied with, and the Trust Monies whose withdrawal is then requested may be paid over under this Section 11.13(A11.12(A);
(ii) that the relevant Security Documents create a valid, binding and enforceable Lien on and security interest in such repairs, rebuildings and replacements in favor of the Trustee in favor of the Holders; and
(iii) that all the Company's or the applicable Guarantor's right, title and interest in and to said repairs, rebuilding or replacements, or combination thereof are then subject to the Lien of this Indenture and the relevant Security Documents; and upon compliance with the foregoing provisions of this Section 11.13(A11.12(A), the Trustee shall, upon receipt of a written request from the Company, pay, or instruct the Collateral Agent to pay, as applicable, an amount of Net Loss Proceeds constituting Trust Monies equal to the amount of the expenditures or costs stated in the Officers' Certificate required by clause (i) of paragraph (a) of this Section 11.13(A11.12(A);
(B) to the extent that any Trust Monies consist of Excess Net Loss Proceeds received by the Second Priority Collateral Agent Trustee pursuant to the provisions of Section 4.20 hereof and a Net Loss Proceeds Offer has been made in accordance therewith, such Trust Monies may be withdrawn by the Company and the Second Priority Trustee shall pay or instruct the Collateral Agent shall pay to pay, as applicable, the Paying Agent for application in accordance with Section 4.20 upon a notice from the Company to the Trustee (a "Company Notice") and upon receipt by the Trustee of the following:
(a) an Officers' Certificate, dated not more than three days prior to the Net Loss Proceeds Offer Payment Date stating:
(i) that no Default or Event of Default shall have occurred and be continuing after giving effect to such application;
(ii) (x) that such Trust Monies constitute Excess Net Loss Proceeds, (y) that pursuant to and in accordance with Section 4.20, the Company has made a Net Loss Proceeds Offer and (z) the amount of Note Excess Net Loss Proceeds to be applied to the repurchase of Notes pursuant to the Net Loss Proceeds Offer;
(iii) the Net Loss Proceeds Offer Payment Date; and
(iv) that all conditions precedent and covenants herein provided for relating to such application of Trust Monies have been complied with; and
(b) all documentation, if any, required under the TIA, including without limitation TIA § 314(d); and upon compliance with the foregoing provisions of this Section 11.13(B11.12(B), the Second Priority Trustee shall apply or direct to Collateral Agent shall to apply, as applicable, the Trust Monies as directed and specified by such Company Notice, subject to Section 4.20;
(C) to the extent that any Trust Monies consist of Excess Net Cash Proceeds received by the Second Priority Collateral Agent Trustee pursuant to the provisions of Section 4.15 hereof and a Net Proceeds Offer has been made in accordance therewith, such Trust Monies may be withdrawn by the Company and the Second Priority Trustee shall pay or instruct the Collateral Agent shall pay to pay, as applicable, to the Paying Agent for application in accordance with Section 4.15 upon a Company Notice to the Trustee and upon receipt by the Trustee of the following:
(a) an Officers' Certificate, dated not more than three Business Days prior to the Net Cash Proceeds Offer Trigger Payment Date stating:
(i) that no Default or Event of Default shall have occurred and be continuing after giving effect to such application;
(ii) (x) that such Trust Monies constitute Excess Net Cash Proceeds, (y) that pursuant to and in accordance with Section 4.15 hereof, the Company has made a Net Cash Proceeds Offer and (z) the amount of Notes Excess Net Cash Proceeds to be applied to the repurchase of Notes pursuant to the Net Cash Proceeds Offer;
(iii) the Net Cash Proceeds Offer Trigger Payment Date; and
(iv) that all conditions precedent and covenants herein provided for relating to such application of Trust Monies have been complied with; and
(b) all documentation, if any, required under the TIA including without limitation TIA § 314(d); and upon compliance with the foregoing provisions of this Section 11.13(C11.12(C), the Trustee shall apply or shall instruct the Collateral Agent to apply, as applicable, the Trust Monies as directed and specified by such Company Notice, subject to Section 4.15 hereof; and
(D) in the event the Company intends to reinvest Net Cash Proceeds from an Asset Sale of Collateral in Replacement Assets or use the Net Cash Proceeds as provided in clause (1)(C) of the second paragraph of Section 4.15 ("Acquisition Assests") (the "Released Trust Monies"), such Net Cash Proceeds constituting Trust Monies may be withdrawn by the Company and the Second Priority Trustee shall pay or instruct the Collateral Agent shall to pay, as applicable, to the Company upon receipt by the Second Priority Collateral Agent and the Trustee of the following:
(a) a written notice signed by the Company which shall (i) refer to this Section 11.13(D11.12(D), (ii) contain all documents referred to below, (iii) describe with particularity the Released Trust Monies, (iv) describe with particularity the Replacement Assets or Acquisition Assets to be invested in with respect to the Released Trust Monies and (v) be accompanied by a counterpart of the instruments proposed to give effect to the release fully executed and acknowledged (if applicable) by all parties thereto other than the Trustee;
(b) an Officers' Certificate certifying that (i) such Trust Monies constitute Net Cash Proceeds, (ii) the release of the Released Trust Monies complies with the terms and conditions of this Indenture, (iii) there is no Default or Event of Default (both before and after investing in the Replacement Asset or the Acquisition Asset) in effect or continuing on the date thereof, (iv) the release of the Released Trust Monies shall not result in a Default or Event of Default hereunder and (v) all conditions precedent herein to such release have been complied with;
(c) all documentation, if any, required under the TIA, including without limitation TIA § 314(d);
(d) a Security Document or an amendment to an existing Security Document and such financing statements and other instruments, if any, necessary to create and perfect the Lien of any applicable Security Document on such Replacement Assets or the Acquisition Assets;
(e) evidence of payment or a closing statement indicating payments to be made by the Company or the appropriate Guarantor of all filing fees, recording charges and/or transfer taxes, if any, and other costs and expenses, including reasonable legal fees and disbursements of one counsel for the Trustee (and any local counsel), that may be incurred to validly and effectively subject the Replacement Asset or the Acquisition Assets to the Lien of any Security Document; and
(f) an Opinion of Counsel substantially to the effect:
(i) that the documents that have been or are therewith delivered to the Trustee in connection with an investment in Replacement Assets or Acquisition Assets conform to the requirements of this Indenture and that all conditions precedent herein provided for relating to such application of Trust Monies have been complied with; and
(ii) to the extent that such Replacement Assets or Acquisition Assets were acquired with Net Cash Proceeds, the relevant Security Documents create a valid, binding and enforceable Lien (subject only to Permitted Collateral Liens) on and security interest in such Replacement Assets or Acquisition Assets in favor of the Trustee for the benefit of the Holders; and upon compliance with the foregoing provisions of this Section 11.13(D11.12(D), the Trustee shall apply or shall instruct the Second Priority Collateral Agent to apply apply, as applicable, the Released Trust Monies as directed and specified by the Company. If any conflict or inconsistency exists between this Section 11.13 11.12 and the Security Agreements Intercreditor Agreement or any other applicable Security Documents, the Security Agreements Intercreditor Agreement and the applicable Security Documents shall govern. ARTICLE TWELVE.
Appears in 1 contract