Release of Collateral. (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances: (1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents; (2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor; (3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture; (4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture; (5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied. (b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 2 contracts
Sources: Indenture (Apparel Holding Corp.), Indenture (Apparel Holding Corp.)
Release of Collateral. (a) The Collateral may Agent’s Liens upon the Collateral will no longer secure the Securities and Guarantees thereof outstanding under this Indenture or any other Indenture Obligations under this Indenture, and the right of the Holders and such Indenture Obligations to the benefits and proceeds of the Collateral Agent’s Liens on the Collateral will terminate and be released from the Liens created automatically discharged without further action by the Security Documents Trustee, the Collateral Agent or any other Person:
(i) in part, as to all property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances;
(ii) in whole, upon:
(1) payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Securities; or
(2) satisfaction and discharge of this Indenture as set forth in Article Twelve hereof; or
(3) legal defeasance or covenant defeasance of this Indenture as set forth in Article Four hereof; Upon request of the Issuer in connection with a proposed release under this Section 14.04(a)(ii), the Trustee and Collateral Agent, shall provide a payoff letter (with customary lien release provisions) in customary form to the Issuer (and the Guarantors); provided that nothing contained in this paragraph shall, or shall be interpreted to, limit the requirements of Section 14.04(b) below as to any release of Collateral;
(iii) in part, as to any property that (A) is sold, transferred or otherwise disposed of by the Issuer or one of its Restricted Subsidiaries in a transaction not prohibited by this Indenture, at the time of such sale, transfer or disposition, to the extent of the interest sold, transferred or disposed of or (B) is owned or at any time or acquired by a Guarantor that has been released from time to timeits Guarantee of the Securities, and the Security Documents may be terminated, in each case, in accordance concurrently with the provisions release of such Guarantee (including without limitation any release pursuant to Section 10.13(c));
(iv) in part, as to any Excess Proceeds remaining after the consummation of an Asset Sale Offer;
(v) in whole or in part, as to any property that constitutes all or substantially all of the Security Collateral securing the Indenture Obligations, with the consent of the holders of 75% in aggregate principal amount of the Securities (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, notes); or
(vi) in part, as to any property that constitutes less than substantially all of the Collateral securing the Indenture Obligations, with the consent of the holders of a majority in aggregate principal amount of the Securities (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, notes).
(a) To the extent applicable, the Issuer and each Guarantor will furnish to the Trustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and in accordance with this Indenture. Upon the request of the Company pursuant to :
(vii) an Officers’ Certificate requesting such release;
(viii) an Officers’ Certificate and an Opinion of Counsel certifying (upon which the Collateral Agent may conclusively rely) to the effect that all covenants and conditions precedent hereunder provided for in this Indenture and the Collateral Documents to such release have been complied with; and
(ix) a form of such release (which release shall be in form reasonably satisfactory to the Trustee and shall provide that the requested release is without recourse or warranty to the Trustee). Upon compliance by the Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuer or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Company Trustee and the Guarantors will Collateral Agent, as applicable, shall promptly cause to be entitled to a release of assets included in the Collateral from the Liens securing the Notes, released and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, reconveyed to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security DocumentsIssuer, or the termination of the Security DocumentsGuarantors, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors case may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documentsbe, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedreleased Collateral.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 2 contracts
Sources: Consent Agreement (Blyth Inc), Supplemental Indenture (Blyth Inc)
Release of Collateral. (a) Collateral may Except as otherwise provided in subsections (b) and (c) of this Section 2.09 and the terms of the Transaction Documents, the Indenture Trustee shall release property from the lien of this Indenture only upon receipt by it of an Issuer Request accompanied by (i) an Officer’s Certificate, (ii) an Opinion of Counsel, (iii) certificates in accordance with TIA Sections 314(c) and (d)(1), and (iv)(A) Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or (B) an Opinion of Counsel in lieu of such Independent Certificates to the effect that the TIA does not require any such Independent Certificates (which, so long as any Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default has occurred and is continuing, shall also be addressed to the Insurer); provided that no such Independent Certificates or Opinion of Counsel in lieu of such Independent Certificates shall be necessary in respect of property released from the Liens created by lien of the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, Indenture in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each such property consists solely of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedcash.
(b) If The Servicer, on behalf of the Issuer and with the consent of the Insurer (so long as the Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and not Insurer Default has occurred and is continuing), shall be entitled to obtain a release from the lien of this Indenture for any Mortgage Loan and the Mortgaged Property at any time (i) after a payment by the Seller or the Servicer of the Purchase Price of the Mortgage Loan, (ii) after a Eligible Substitute Mortgage Loan is substituted for such Mortgage Loan and payment of the Substitution Amount, if any, (iii) after liquidation of the Mortgage Loan in accordance with the Sale and Servicing Agreement and the deposit of all Liens on Liquidation Proceeds and Insurance Proceeds in the Collection Account, (iv) upon the termination of a Mortgage Loan (due to, among other causes, a prepayment in full of the Mortgage Loan and sale or other disposition of the related Mortgaged Property), or (v) as contemplated by Section 8.01 of the Sale and Servicing Agreement.
(c) The Indenture Trustee shall, if requested by the Servicer, temporarily release or cause the applicable custodian temporarily to release to such property or assets securing First-Priority Liens (including all commitments party the Mortgage File pursuant to the provisions of Section 3.08 of the Sale and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the CollateralServicing Agreement; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of Mortgage File shall have been stamped to signify the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect Issuer’s pledge to the Collateral in favor of Indenture Trustee under the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementIndenture.
Appears in 2 contracts
Sources: Indenture (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2007-H1), Indenture (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H4)
Release of Collateral. (a) Collateral may Except as otherwise provided in subsection (b) of this Section and the terms of the Operative Agreements, the Indenture Trustee shall release property from the lien of this Indenture only upon receipt by it of an Issuer Request accompanied by (i) an Officer’s Certificate, (ii) an Opinion of Counsel, (iii) certificates in accordance with TIA Sections 314(c) and (d)(1), and (iv)(A) Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or (B) an Opinion of Counsel in lieu of such Independent Certificates to the effect that the TIA does not require any such Independent Certificates; provided that no such Independent Certificates or Opinion of Counsel in lieu of such Independent Certificates shall be necessary in respect of property released from the Liens created by lien of the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, Indenture in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each such property consists solely of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedcash.
(b) If The Servicer (or if the Servicer does not do so, the Master Servicer), on behalf of the Issuer, shall be entitled to obtain a release from the lien of this Indenture for any Mortgage Loan and the Mortgaged Property at any time (i) after a payment by the Seller or the Issuer of the Purchase Price of the Mortgage Loan, (ii) after a Qualified Substitute Mortgage Loan is substituted for such Mortgage Loan and payment of the Substitution Amount, if any, (iii) after liquidation of the Mortgage Loan in accordance with the Transfer and Servicing Agreement and the deposit of all Liens on Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds in the Collection Account, (iv) upon the termination of a Mortgage Loan (due to, among other causes, a prepayment in full of the Mortgage Loan and sale or other disposition of the related Mortgaged Property), or (v) as contemplated by Article IX of the Transfer and Servicing Agreement.
(c) The Indenture Trustee shall, if requested by the Servicer or the Master Servicer, temporarily release or cause the Custodian temporarily to release to such property or assets securing First-Priority Liens (including all commitments party the Mortgage File pursuant to the provisions of Section 5.12 of the Transfer and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the CollateralServicing Agreement; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of Mortgage File shall have been stamped to signify the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect Issuer’s pledge to the Collateral in favor of Indenture Trustee under the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementIndenture.
Appears in 2 contracts
Sources: Indenture (Homebanc Corp), Indenture (HMB Acceptance Corp.)
Release of Collateral. (a) Collateral may be released from Each Lender hereby consents to the Liens created by the Security Documents at any time or from time to time, release and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral directs Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one (or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a clause (b)(ii) below, release or subordinate) the following:
(a) any Guarantor that is released from its Guarantee with respect to the Notes, the release if all of the property and assets stock of such Guarantor;
Subsidiary owned by any Loan Party is sold or transferred in a transaction permitted under the Loan Documents (3) if the Notes have been defeased including pursuant to Article 8 a valid waiver or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.consent); and
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens Agent for the benefit of the Holders Secured Parties against (i) any Collateral that is sold or otherwise disposed of by any Loan Party in a transaction permitted by the Loan Documents (including pursuant to a valid waiver or consent and including any Lien granted by any Loan Party which is a Subsidiary of any Loan Party the stock of which has been transferred to a third party), (ii) any Collateral subject to a Lien that is expressly permitted under clause (c) of the Notes definition of the term “Permitted Lien” and (iii) all of the Collateral and any Loan Party, upon (A) termination of all of the Term Loan Commitments (which Term Loan Commitments shall be terminable on 5 Business Days’ notice from the Parent to the Agent and shall automatically terminate following the drawing of the Term Loans to which they relate or expiration of the Second Draw Period), (B) the payment in full in cash of all of the Obligations (other than inchoate indemnity obligations for which no claim has been made), and (C) to the extent reasonably requested by Agent, receipt by Agent and Lenders of liability releases from any Loan Party in form and substance reasonably acceptable to Agent (the satisfaction of the conditions in this clause (iii) and the Trustee date on which the release of all Collateral and subject to an intercreditor agreement in substantially each Loan Party has occurred, the same form as the Intercreditor Agreement“Termination Date”).
Appears in 2 contracts
Sources: Loan and Security Agreement (LumiraDx LTD), Loan and Security Agreement (LumiraDx LTD)
Release of Collateral. (a) Subject to Section 11.02(b) and 11.03, the Notes Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indentureor the Intercreditor Agreements or as provided hereby. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company The Issuer and the Guarantors will be entitled to a release of assets included in the Notes Collateral from the Liens securing the NotesSecurities, and the Holders hereby irrevocably authorize and direct Trustee shall release, or instruct the Trustee and Collateral Agent to modifyrelease, release and adjust as applicable, the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company Issuer or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Notes Collateral as permitted under to any Person other than the Issuer or any Restricted Subsidiary (but excluding any transaction subject to Section 5.01 where the recipient is required to become the obligor on the Securities or a Guarantee) to the extent not prohibited by this Indenture and the Security DocumentsIndenture, including Section 4.06;
(2) to release Notes Collateral Excess Proceeds that remain unexpended after the conclusion of a Notes Collateral Asset Sale Offer conducted in accordance with this Indenture;
(3) in the case of a Guarantor that is released from its Guarantee with respect to the NotesSecurities in accordance with this Indenture, the release of the property and assets of such Guarantor;
(34) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture[reserved];
(45) (x) in respect of the ABL Collateral to the extent any first-priority liens on such ABL Collateral are released by the First Lien Agent in connection with a disposition of ABL Collateral to the extent not prohibited under Section 4.06 (except with respect to any proceeds of such disposition that remain after satisfaction in full of the First Priority Lien Obligations secured by such ABL Collateral) or (y) in accordance with an Intercreditor Agreement;
(6) pursuant to an amendment amendment, supplement or waiver in accordance with Article 9 of this Indenture;9; or
(57) if the Securities have been defeased pursuant to Section 8.01 or if this Indenture is discharged pursuant to Section 8.01. Notwithstanding the existence of any Event of Default, the junior lien on the ABL Collateral securing the Securities shall terminate and be released automatically to the extent required the first-priority liens on the ABL Collateral are released by the First Lien Agent in connection with a sale, transfer or disposition of ABL Collateral that is either not prohibited under this Indenture or occurs in connection with the Intercreditor Agreement. The release foreclosure of, or other exercise of remedies with respect to, such ABL Collateral by the First Lien Agent (except with respect to any Collateral from the terms hereof and proceeds of such sale, transfer or disposition that remain after satisfaction in full of the Security Documents or the release ofFirst Priority Lien Obligations). Further, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that any lien on the Liens on Notes Collateral are released, or securing the Security Documents are terminated, Securities is junior to any lien thereon securing any Additional Indebtedness Obligations pursuant to a Customary Intercreditor Agreement, such junior lien shall terminate and be released automatically to the extent such first-priority liens are released by the Additional Indebtedness Agent in connection with a sale, transfer or disposition of such Notes Collateral that is either not prohibited under this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien occurs in accordance connection with the terms foreclosure of, or other exercise of remedies with respect to, such Notes Collateral by the Security Documents and this Indenture will not be deemed for Additional Indebtedness Agent (except with respect to any purpose to be an impairment proceeds of the Lien on the Collateral such sale, transfer or disposition that remain after satisfaction in contravention full of the terms such Additional Indebtedness Obligations). Upon receipt of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentDocuments, if any, to such release have been satisfiedmet and any necessary or proper (as determined by the Issuer) instruments of termination, satisfaction or release have been prepared by the Issuer, the Collateral Agent shall execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Notes Collateral permitted to be released pursuant to this Indenture or the Security Documents or the Intercreditor Agreements.
(b) If all Liens on such property At any time when a Default or assets securing First-Priority Liens (including all commitments Event of Default has occurred and letters of credit thereunder) are released, then is continuing and the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 maturity of the definition Securities has been accelerated (whether by declaration or otherwise) and the Trustee (if not then also appointed and serving as Collateral Agent) has delivered a notice of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect acceleration to the Collateral in favor Agent, no release of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Notes Collateral securing such first-priority Liens pursuant to the same extent provided by provisions of this Indenture or the Security Documents and on will be effective as against the terms and conditions of the security documents relating to such first-priority LiensHolders, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement except as otherwise provided in substantially the same form as the Intercreditor AgreementAgreements.
Appears in 2 contracts
Sources: Indenture (Egalet Corp), Indenture (Egalet Us Inc.)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and the Intercreditor Agreement and in accordance with this IndentureArticle 11. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withIn addition, the Company Issuer and the Guarantors will be entitled to a the release of assets included in the Collateral from the Liens securing the NotesNote Liens, and the Holders hereby irrevocably authorize and Trustee shall (or, if the Trustee is not then the Collateral Agent, shall direct the Trustee and Collateral Agent to modify, to) release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under any one or more of the following circumstances without the need for any further action by any Person:
(i) in whole or in part, as applicable, as to all or any portion of property subject to such Note Liens which has been taken by eminent domain, condemnation or other similar circumstances;
(ii) in whole upon:
(1) Satisfaction and discharge of this Indenture as set forth in Article 12; or
(2) A Legal Defeasance or Covenant Defeasance of this Indenture as set forth in Article 14;
(iii) in part, as to enable any property that (a) is sold, transferred or otherwise disposed of by the Company Issuer or any Restricted Subsidiary Guarantor (other than to sellthe Issuer or another Guarantor) in a transaction not prohibited by this Indenture at the time of such sale, exchange transfer or otherwise dispose disposition, (b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee pursuant to Section 10.05, concurrently with the release of any such Guarantee or (c) is or becomes Excluded Assets;
(iv) as to property that constitutes less than all or substantially all of the Collateral securing the Notes, with the consent of the Holders of at least 90% aggregate principal amount of the Notes then outstanding voting as permitted a single class (which consent may be obtained in connection with an exchange offer or tender offer and associated consent solicitation);
(v) as to property that constitutes less than all or substantially all of the Collateral securing the Notes, with the consent of the Holders of at least 75% in aggregate principal amount of the Notes then outstanding voting as a single class (which consent may be obtained in connection with an exchange offer or tender offer and associated consent solicitation); and
(vi) in part, in accordance with the applicable provisions of the Security Documents and in accordance with applicable provisions of the Intercreditor Agreement.
(b) So long as this Indenture is not qualified under the Trust Indenture Act, in connection with any release of Collateral under this Indenture, the Issuer shall not be required to comply with Sections 314(b) or 314(c) of the Trust Indenture Act.
(c) Each of the Issuer and the Guarantors may, among other things, without any release or consent by the Trustee, but otherwise in compliance with the covenants of this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee , conduct ordinary course activities with respect to the NotesCollateral, the release including (i) selling or otherwise disposing of, in any transaction or series of the related transactions, any property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) subject to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and Lien of the Security Documents which has become worn out, defective or obsolete or not used or useful in the release ofbusiness; (ii) abandoning, terminating, canceling, releasing or making alterations in whole or in part, substitutions of any leases or contracts subject to the Liens created by the Security Documents, or the termination Lien of the Security Documents; (iii) surrendering or modifying any franchise, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and license or permit subject to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents which it may own or under which it may be operating; (iv) altering, repairing, replacing, changing the location or position of and this Indenture will not be deemed adding to its structures, machinery, systems, equipment, fixtures and appurtenances; (v) granting a license of any intellectual property; (vi) selling, transferring or otherwise disposing of inventory in the ordinary course of business; (vii) collecting accounts receivable in the ordinary course of business or selling, liquidating, factoring or otherwise disposing of accounts receivable in the ordinary course of business; (viii) making cash payments (including for the repayment of Indebtedness or interest and in connection with the Issuer’s cash management activities) from cash that is at any purpose to be an impairment time part of the Lien on the Collateral in contravention the ordinary course of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying business that such release is authorized or permitted are not otherwise prohibited by this Indenture and the Security Documents Documents; and (ix) abandoning any intellectual property which is no longer used or useful in the Issuer’s or the Guarantors’ business. The Issuer shall deliver to the Trustee within 30 calendar days following the end of each fiscal year (or such later date as the Trustee shall agree), an Officer’s Certificate to the effect that all conditions precedent, if any, to such release have been satisfied.
releases and withdrawals during the preceding fiscal year (b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters since the date of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, whichthis Indenture, in the case of any the first such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions certificate) in which no release or consent of the security documents relating to such first-priority Liens, with Trustee was obtained in the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit ordinary course of the Holders of the Notes Issuer’s and the Trustee and subject Guarantors’ business pursuant to an intercreditor agreement in substantially the same form as the Intercreditor Agreementthis Section 16.04(c) were not prohibited by this Indenture.
Appears in 2 contracts
Sources: Indenture (Horizon Lines, Inc.), Indenture (Horizon Lines, Inc.)
Release of Collateral. (a) Subject to Section 10.03(b) hereof, Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreement and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company The Issuer and the Guarantors will be entitled to a release of property and other assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize Trustee (subject to its receipt of an Officer Certificate and direct Opinion of Counsel as provided below) shall release, or instruct the Trustee and Collateral Agent to modifyrelease, release and adjust as applicable, the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company Issuer or any Restricted Subsidiary Guarantor to sell, exchange or otherwise dispose of any of the Collateral (other than to the Issuer or a Restricted Subsidiary, as permitted applicable) to the extent not prohibited under this Indenture and the Security DocumentsSection 4.13;
(2) in the case of a Guarantor that is released from its Note Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;; or
(54) if the Notes have been discharged or defeased pursuant to Section 8.01 or Section 8.02. The second-priority lien on the ABL Collateral securing the Notes will terminate and be released automatically if the first-priority liens on the ABL Collateral are released by the Bank Collateral Agent (unless, at the time of such release of such first-priority liens, an Event of Default shall have occurred and be continuing under this Indenture) other than in connection with any such release by the Bank Collateral Agent in connection with a Discharge of ABL Obligations. Notwithstanding the existence of an Event of Default, the second-priority lien on the ABL Collateral securing the Notes shall also terminate and be released automatically to the extent required the first-priority liens on the ABL Collateral are released by the Bank Collateral Agent in connection with a sale, transfer or disposition of ABL Collateral that is either not prohibited under this Indenture or occurs in connection with the Intercreditor Agreementforeclosure of, or other exercise of remedies with respect to, such ABL Collateral by the Bank Collateral Agent (except with respect to any proceeds of such sale, transfer or disposition that remain after satisfaction in full of the Lenders Debt) other than in connection with a Discharge of ABL Obligations. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens liens on the Collateral in contravention of securing the provisions hereof if and to the extent Notes that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral otherwise would have been released pursuant to the terms first sentence of the this paragraph will be released when such Event of Default and all other Events of Default under this Indenture or cease to exist. With respect to any Security Documentsrelease of Collateral, the Trustee shall, in the absence upon receipt of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentthe Intercreditor Agreement (and TIA §314(d)), if any, to such release have been satisfied.
(b) If all Liens on met and that it is proper for the Trustee or Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such property release, and any necessary or assets securing First-Priority Liens (including all commitments and letters proper instruments of credit thereunder) are releasedtermination, then satisfaction or release prepared by the Company and its Subsidiaries will take all steps required to convert Issuer, the Holders’ second-priority Liens on Trustee shall, or shall cause the Collateral into first-priority Liens on Agent to, execute, deliver or acknowledge (at the Collateral; provided, however, that if Issuer’s expense) such instruments or releases to evidence the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents or the Intercreditor Agreement. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and on notwithstanding any term hereof or in any Security Document or in the terms and conditions of Intercreditor Agreement to the security documents relating to such first-priority Lienscontrary, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate and Opinion of Counsel.
Appears in 2 contracts
Sources: Indenture (Headwaters Inc), Indenture (Headwaters Inc)
Release of Collateral. (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the The Company and the Guarantors will be entitled to a release releases of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Note Obligations under any one or more of the following circumstances:
(1) upon the full and final payment and performance of all Note Obligations of the Company and the Guarantors;
(2) with respect to enable any asset constituting Collateral, if such Collateral is sold or otherwise disposed of in accordance with the terms of Section 4.18 (“Asset Sales”) and the Collateral Agreements and the Company has delivered to the Noteholder Collateral Agent an Officers’ Certificate certifying to such effect; provided that (a) any cash received from a disposition of Collateral will be required to be deposited in a deposit account controlled by the Company and held as Collateral subject to the Liens pending its application or use in compliance with Section 4.18 (“Asset Sales”) and, from such deposit account, the Company or any Restricted Subsidiary may withdraw funds to selldeploy the proceeds of an Asset Sale in compliance with Section 4.18 (“Asset Sales”); and (b) to the extent that any disposition in such Asset Sale was of Collateral, exchange the non-cash consideration received is pledged as Collateral under the Collateral Agreements substantially simultaneously with such sale, in accordance with the requirements set forth in this Indenture and the Collateral Agreements;
(3) upon legal or otherwise dispose covenant defeasance or satisfaction and discharge of the Notes as provided in Sections 8.02, (“Legal Defeasance and Discharge,”), 8.03 (“Covenant Defeasance”) and 10.01 (“Satisfaction and Discharge,”);
(4) with respect to an applicable Subsidiary, upon the occurrence of a Contract Unwind Trigger;
(5) with respect to any assignment of rights under the respective terminated Internal Charter only, upon the occurrence of an Internal Charter Unwind Trigger;
(6) if any Guarantor is released from its Note Guarantee in accordance with the terms of this Indenture (including by virtue of such Guarantor ceasing to be a Restricted Subsidiary), that Guarantor’s assets will also be released from the Liens securing its Note Guarantee and the other Obligations; or
(7) as provided in the Second Lien Intercreditor Agreement.
(b) In addition to the foregoing, the Company and the Guarantors will comply with the provisions of TIA § 314. To the extent applicable, the Company and the Guarantors will comply with TIA § 314(d), relating to the release of property or securities or relating to the substitution therefor of any property or securities to be subjected to the Lien of the Collateral security documents. Any certificate or opinion required by TIA § 314(d) may be made by an Officer of the Company except in cases where TIA § 314(d) requires that such certificate or opinion be made by an independent Person, which Person will be an independent engineer, appraiser or other expert selected by the Company. Notwithstanding anything to the contrary in this paragraph, the Company will not be required to comply with all or any portion of TIA § 314(d) if it determines, in good faith based on advice of counsel, that under the terms of TIA § 314(d) and/or any interpretation or guidance as permitted to the meaning thereof of the SEC, including “no action” letters or exemptive orders, all or any portion of TIA § 314(d) is inapplicable to one or a series of released Collateral.
(c) With respect to any release of Collateral, except as otherwise provided in the Intercreditor Agreements, upon receipt of an Officers’ Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Security Documents;
(2) in Collateral Agreements to such release have been met, and any necessary or proper instruments of termination, satisfaction or release prepared by the Company or the Guarantors, as the case of a Guarantor that is released from its Guarantee with respect may be, the Noteholder Collateral Agent shall, at the Company’s sole cost and expense, execute, deliver or acknowledge such instruments or releases to the Notes, evidence the release of any Collateral permitted to be released pursuant to this Indenture or the property Collateral Agreements, including the Intercreditor Agreements. Neither the Trustee nor the Noteholder Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and assets the Trustee and the Noteholder Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until (i) it receives such Guarantor;Officers’ Certificate and Opinion of Counsel or (ii) the Intercreditor Agreements expressly provides for automatic release of Collateral under this Indenture.
(3d) if For the Notes have been defeased pursuant to Article 8 purposes of the TIA or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required otherwise under the Intercreditor Agreement. The Indenture, the release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will Collateral Agreements shall not be deemed to impair the Liens on the Collateral security under this Indenture in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, is released pursuant to this Indenture Indenture, the Collateral Agreements or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Credit Agreement Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedAgreements.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 2 contracts
Sources: Indenture (Vantage Drilling International), Indenture (Vantage International Management Pte Ltd.)
Release of Collateral. (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon 9.1 At the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withCompany, the Company Collateral Agent shall, and each of the Representatives and the Guarantors will be entitled to a release of assets included in Secured Parties hereby authorizes and directs the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent (without any further notice or consent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
Secured Party) to, promptly release (2) or, in the case of clause (b) or (e) below, release or subordinate as required by the holders of any Lien specified thereunder) any Lien held by the Collateral Agent for the benefit of the Secured Parties against any of the following:
(a) all of the Collateral, and all Loan Parties, upon receipt of (i) a Guarantor written notice from each of the Representatives that is released the Payment Obligations (as defined in each Credit Agreement) and the Noteholder Payment Obligations have been paid in full (or, in the case of the Indenture, that a legal defeasance or covenant defeasance has been effected thereunder or that the Indenture has been discharged in accordance with its terms) and (ii) a certificate of a Responsible Officer of the Company that (A) all Designated Eligible Obligations have been paid in full or have been Undesignated prior to or concurrently with the delivery of such certificate and (B) all other Secured Claims, if any, then due and payable have been paid in full; provided, however, that, if the Collateral Agent has received a notice to the contrary from its Guarantee any Secured Party with respect to the Notesits Secured Claims, the release of the property and assets of such Guarantornotice shall also have been withdrawn;
(3b) if any part of the Notes have been defeased pursuant Collateral that is subject to Article 8 a Lien permitted by Sections 11.3(a), (b), (c), (d), (e), (o) or satisfied and discharged pursuant to Article 12 (p) of this Indenturethe Credit Agreements;
(4c) any part of the Collateral sold or disposed of by a Loan Party if such sale or disposition is permitted by the Financing Documents (or pursuant to an amendment a valid waiver or waiver in accordance with Article 9 of this Indentureconsent to a transaction otherwise prohibited by the Financing Documents);
(5d) to the extent required under the Intercreditor Agreement. The release of any Pledged Collateral from the terms hereof and of the Security Documents that has been cancelled, replaced or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien repaid in accordance with the terms of the Security Documents Financing Documents; and
(e) any part of the Collateral, upon receipt of (i) a written instruction from the Multi-Currency Administrative Agent and this Indenture will not be deemed for any purpose the Term Loan Administrative Agent, acting jointly, to be an impairment of release or subordinate the Lien on the such Collateral in contravention and (ii) a certificate of a Responsible Officer of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release or subordination is authorized or permitted by this each of the Credit Agreements and the Indenture and that no Event of Default has occurred under the Security Documents Indenture and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit is continuing thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, whichthat, in the case of any such subsequent first-priority Liensthis clause (e), will be second-priority Liens on if the Collateral securing Agent has received a Notice of Actionable Default from the Noteholder Representative, such first-priority Liens to notice shall also have been withdrawn.
9.2 At the same extent provided by the Security Documents and on the terms and conditions request of the security documents relating Company, the Collateral Agent shall, and each of the Noteholder Representative and the Noteholder Secured Parties hereby authorizes and directs the Collateral Agent (without any further notice or consent to such first-priority Liensor of any Secured Party) to, with the second-priority (x) promptly confirm that it does not hold a Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders Noteholder Secured Parties on any Other Excluded Assets (as defined in the Indenture); or (y) promptly release (or, in the case of clause (b) below, release or subordinate as required by the holders of any Lien specified thereunder) any Lien held by the Collateral Agent for the benefit of the Notes Noteholder Secured Parties only (but not any Lien held by the Collateral Agent for the benefit any other Secured Parties unless such release or subordination is permitted under Section 9.1 above) against any of the following:
(a) all of the Collateral, and all Loan Parties, upon receipt of a written notice from the Noteholder Representative that the Noteholder Payment Obligations have been paid in full (or that a legal defeasance or covenant defeasance has been effected under the Indenture or that the Indenture has been discharged in accordance with its terms); provided, however, that, if the Collateral Agent has received a notice to the contrary from any Noteholder Secured Party with respect to its Secured Claims, such notice shall also have been withdrawn; or
(b) any part of the Collateral, upon receipt of a certificate of a Responsible Officer of the Company that such release or subordination is permitted by the Indenture and that no Event of Default has occurred under the Indenture and is continuing thereunder; provided, however, that, in the case of this clause (b), if the Collateral Agent has received a Notice of Actionable Default from the Noteholder Representative, such notice shall also have been withdrawn.
9.3 Each of the Representatives and the Trustee Secured Parties hereby authorizes and subject directs the Collateral Agent to an intercreditor agreement execute and deliver or file such termination and partial release statements and take such other actions as are reasonably necessary to release (or subordinate) Liens pursuant to this Section 9 promptly upon the effectiveness of any such release (or subordination). Each of the Agents and the Secured Parties hereby acknowledges and agrees that the Loan Parties may use the Collateral to the extent permitted under the Financing Documents. Each Representative hereby agrees to give the notice referred to in substantially Section 9.1(a)(i) when the same form Payment Obligations (as defined in each Credit Agreement) and the Intercreditor AgreementNoteholder Payment Obligations, as applicable, have been paid in full.
Appears in 2 contracts
Sources: Intercreditor and Collateral Agency Agreement (Revlon Consumer Products Corp), Intercreditor and Collateral Agency Agreement (Revlon Consumer Products Corp)
Release of Collateral. (a) The Liens on the Collateral may under the Security Documents securing the Obligations with respect to the Notes and the Note Guarantees and this Indenture will be released from released, subject to this Section 10.03,
(1) in whole, upon payment in full of the Liens created principal of, accrued and unpaid interest, and premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge as set forth under Section 8.01;
(3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth under Section 8.02;
(4) as to any asset constituting Note Collateral (A) that is sold or otherwise disposed of by the Issuer, the Co-Issuer, any of the Subsidiary Guarantors or Absaloka (to a person that is not the Issuer, the Co-Issuer or a Subsidiary Guarantor or Absaloka) in a transaction permitted by Section 4.13 and by the Security Documents at any time (to the extent of the interest sold or from time to time, disposed of) or otherwise permitted by this Indenture and the Security Documents may be terminatedDocuments, if all Liens on that asset then securing the Notes and the Note Guarantees then secured by that asset (including all commitments thereunder) are released or (B) that is otherwise released in accordance with, and as expressly provided for in accordance with, this Indenture, the Intercreditor Agreement and the Security Documents;
(5) in compliance with Section 9.02, as to property that constitutes less than all or substantially all of the Note Collateral, with the consent of the Controlling Secured Parties (or, in each casethe case of a release of all or substantially all of the Note Collateral, with the consent of the Holders of 75% in principal amount of the Notes then outstanding), including consents obtained in connection with a tender offer or Exchange Offer for, or purchase of, Notes; and
(6) with respect to assets of a Guarantor upon release of such Guarantor from its Note Guarantee pursuant to Section 11.04. provided that, in accordance with the provisions case of any release in whole pursuant to clause (a)(1) above, all amounts owing to the Note Collateral Agent, the Trustee under the Notes, the Note Guarantees, the Security Documents and the Intercreditor Agreement have been paid.
(b) In no event shall any purchaser in accordance with this Indenture. Upon good faith of any property purported to be released hereunder be bound to ascertain the request authority of the Company pursuant Note Collateral Agent or the Trustee to execute the release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article Ten to be sold be under any obligation to ascertain or inquire into the authority of the Issuers or the applicable Guarantor to make any such sale or other transfer.
(c) Any release of any Lien on the Collateral under the Security Documents securing the Obligations under the Notes and this Indenture under this Section 10.03 will occur automatically as provided in Sections 10.03(a)(4)(A) and 10.03(a)(4)(B), upon receipt of an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder to such release have been complied withsatisfied, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Note Collateral Agent shall promptly execute and execute, deliver or acknowledge such documents and appropriate instruments or releases to evidence such release as the Company and the Guarantors applicable Issuer or Guarantor may reasonably request to evidence any such permitted release without the consent request. Upon receipt of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, precedent to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert Note Collateral Agent shall also release the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by under the Security Documents and on securing the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Obligations under the Notes and this Indenture as provided in the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreementother subparts of Section 10.03(a).
Appears in 2 contracts
Sources: Indenture (Westmoreland Energy LLC), Indenture (WESTMORELAND COAL Co)
Release of Collateral. (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the The Company and each Mortgaged Vessel Guarantor shall have the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary right to sell, exchange or otherwise dispose of any of the Collateral as permitted under owned by it (other than Cash Collateral, which is subject to release from the Lien of this Indenture Agreement and the Security Documents as set forth in Section 10.20(b)), upon compliance with the requirements and conditions of this Section 10.22(a), the Administrative Agent shall release the same from the Lien of this Agreement or the Security Documents, as the case may be, upon receipt by the Administrative Agent of a notice requesting such release and describing the property to be so released, together with delivery of the following:
(i) if the property to be released has a Fair Market Value equal to or greater than $10,000,000, a resolution of the Board of Directors of the Company or the relevant Mortgaged Vessel Guarantor, as the case may be, requesting such release and authorizing an application to the Administrative Agent therefor;
(2ii) an Officer’s Certificate of the Company or the relevant Mortgaged Vessel Guarantor (i.e. the relevant owner or owners of the Collateral in question), as the case may be, dated not more than five days prior to the date of the application for such release, in each case stating in substance the following:
(A) that either: (I) the Collateral to be released is not Net Proceeds from an Asset Sale and is not being replaced by comparable property, has a book value of less than $1,000,000, and is not necessary for the efficient operation of the Company’s and the Restricted Subsidiaries’ remaining property or in the conduct of the business of the Company and the Restricted Subsidiaries as conducted immediately prior thereto; or (II) the Collateral to be released is being released in connection with an Asset Sale or an Event of Loss involving such Collateral and the Net Proceeds from such Asset Sale or the Loss Repayment Amount with respect to such Event of Loss, as the case may be, are being or will be delivered to the Administrative Agent to be held as Cash Collateral and to be applied in accordance with the terms of this Agreement including, without limitation, Section 10.20(b) hereof; or (III) the Collateral to be released is Cash Collateral representing (x) the Net Proceeds from an Asset Sale involving Collateral which are to be applied to the purchase of one or more Qualified Vessels (which may include a Qualified Vessel owned by a Subsidiary (including a Guarantor) that is not a Mortgaged Vessel Guarantor) and Permitted Repairs thereon as provided under Section 6.5(b), (y) a portion of the Loss Repayment Amount with respect to an Event of Loss which is to be applied to the purchase of one or more Qualified Vessels (which may include a Qualified Vessel owned by a Subsidiary (including a Guarantor) that is not a Mortgaged Vessel Guarantor) and Permitted Repairs thereon as set forth in Section 5.14 or (z) the net proceeds from the incurrence of any Incremental Term Loans or Permitted Incremental Indebtedness which are to be applied to the purchase of one or more Qualified Vessels (which may include a Qualified Vessel owned by a Subsidiary (including a Guarantor) that is not a Mortgaged Vessel Guarantor) and Permitted Repairs thereon as permitted by this Agreement or (IV) the Collateral to be released constitutes Cash Collateral that are being applied to the purchase of one or more Qualified Vessels (which may include a Qualified Vessel owned by a Subsidiary (including a Guarantor) that is not a Mortgaged Vessel Guarantor) and to make Permitted Repairs thereon or (V) the Collateral to be released is being released either (x) in connection with an Asset Sale for Qualified Collateral, (y) the Collateral to be released constitutes Collateral being released pursuant to Section 5.9(d) or Section 8.3(c) or (z) otherwise upon the receipt of Qualified Collateral (including without limitation in connection with any refinancing transaction) having a Fair Market Value at least equal to the Collateral to be released, which Qualified Collateral, in either case, is to be pledged to secure the Obligations;
(B) that no Default has occurred and is continuing;
(C) the Fair Market Value, in the opinion of the signers, of the property (other than Cash Collateral) to be released at the date of such application for release, provided that it shall not be necessary under this clause (C) to state the Fair Market Value of any property whose Fair Market Value is certified in a certificate of an Independent Appraiser under clause (iii) below; and
(D) that all conditions precedent in this Agreement and the Security Documents relating to the release of the Collateral in question have been complied with; and
(iii) If the property to be released is one or more Vessels the certificate of an Independent Appraiser which reflects the Appraised Value of such Vessel or Vessels.
(b) In connection with any release, the Company and the Mortgaged Vessel Guarantors shall (i) execute, deliver and record or file and obtain such instruments as the Administrative Agent may reasonably require, including, without limitation, amendments to the Security Documents and (ii) deliver to the Administrative Agent such evidence of the satisfaction of the applicable provisions of this Agreement and the Security Documents as the Administrative Agent may reasonably require.
(c) Notwithstanding any provision of this Section 10.22 to the contrary, the Company may obtain a release of (i) Net Proceeds from an Asset Sale involving Collateral that are required to prepay Loans pursuant to Section 6.5(b) by directing the Administrative Agent in writing to cause to be applied such Net Proceeds in accordance with Section 2.6(c) or (ii) all or any portion of a Loss Repayment Amount deposited with the Administrative Agent in connection with an Event of Loss with respect to a Mortgaged Vessel that is required to prepay Loans pursuant to Section 2.6(c) on the date of such purchase in accordance with Section 5.14 in the case of a Guarantor that is released from its Guarantee either (i) or (ii) above, by directing the Administrative Agent in writing to cause to be applied such amount thereto in accordance with respect such Sections. Furthermore and notwithstanding any provisions of this Section 10.22 to the Notescontrary, in connection with the release incurrence of the property and assets of such Guarantor;
Incremental Term Loans under any Incremental Amendment, (3x) if the Notes Borrowers shall have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance prepaid Term Loans with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Incremental Proceeds Cash Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not Incremental Amendment relating to such incurrence, the Borrowers shall be deemed for any purpose entitled to be an impairment obtain a release of all the Lien on Other Funds Cash Collateral, deposited in the Collateral Account in contravention connection with such Incremental Amendment, after the application of any such Other Funds Cash Collateral in connection with the acquisition of Qualified Vessels in accordance with the terms of this Indenture. The such Incremental Amendment and (y) if the Borrowers shall have prepaid any Incremental Term Loans the proceeds of which were deposited as Segregated Cash Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to in accordance with the terms of the Indenture or any Security DocumentsIncremental Amendment relating to such incurrence, the Trustee shall, in the absence of its negligence or willful misconduct Borrowers shall be entitled to receiveobtain a release of such Other Funds as provided in Section 2.23, and shall be fully protected deposited as Segregated Cash Collateral in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that connection with such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedIncremental Amendment.
(bd) If all Liens on such In case a Default or an Event of Default shall have occurred and be continuing, the Company, while in possession of the Collateral (other than cash and other personal property held by, or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert be deposited or pledged with, the Holders’ second-priority Liens on Administrative Agent hereunder or under any Security Document), may do any of the Collateral into first-priority Liens on the Collateral; provided, however, that things enumerated in this Section 10.22 only if the Company Administrative Agent (in its discretion, or the Majority Facility Lenders shall consent to such action, in which event any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of certificate filed under this Section 10.22 shall omit the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect statement to the Collateral in favor effect that no Default or Event of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided Default has occurred and is continuing.
(e) All cash or Cash Equivalents received by the Security Documents and on the terms and conditions of the security documents relating Administrative Agent pursuant to such first-priority Liens, with the second-priority Lien this Section 10.22 shall be held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens Administrative Agent for the benefit of the Holders Secured Parties, as Cash Collateral subject to application as provided in this Section 10.22 or in Section 10.20.
(f) Notwithstanding the foregoing or anything to the contrary herein, Segregated Cash Collateral will not constitute Cash Collateral or other Collateral securing Obligations under all outstanding Term Loans until such time as such Segregated Cash Collateral is released to the Borrowers in accordance with the terms of the Notes and arrangements regarding the Trustee and subject Segregated Cash Collateral relating to an intercreditor agreement in substantially the same form as the Intercreditor Agreementsuch borrowing of Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Navios Maritime Partners L.P.), Credit Agreement (Navios Maritime Midstream Partners LP)
Release of Collateral. (ai) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, The Administrative Agent and the Lenders hereby direct the Administrative Agent, the Collateral Agent or the UK Security Documents Trustee, as the case may be terminatedbe, in each caseto release, in accordance with the provisions terms hereof, any Lien held by the Administrative Agent, the Collateral Agent or the UK Security Trustee, as the case may be, for the benefit of the Security Documents Secured Parties (and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released sale, transfer or disposition of all of the assets or Capital Stock of a Subsidiary under clause (B) below, to release the affected Subsidiary from its Guarantee with respect to the Notes, the release guaranty):
(A) against all of the property Collateral, upon final and assets indefeasible payment in full of such Guarantorthe Loans and Obligations and termination hereof;
(3B) if against any part of the Notes have been defeased Collateral sold, transferred or disposed of by the Borrower or any of its Subsidiaries to the extent such sale, transfer or disposition is permitted hereby (or permitted pursuant to Article 8 a waiver or satisfied and discharged pursuant to Article 12 consent of this Indenturea transaction otherwise prohibited hereby);
(4C) pursuant to an amendment against any Collateral acquired by the Borrower or waiver in accordance any of its Subsidiaries after the Closing Date and at least 70% of the purchase price therefor is within 120 days of the acquisition thereof financed with Article 9 of this IndentureIndebtedness secured by a Lien permitted by Section 8.1(c);
(5D) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing, in the sole discretion of the Administrative Agent upon the request of the Borrower, against any part of the Collateral with a fair market value of less than $10,000,000 in the aggregate during the term of this Agreement as such fair market value may be certified to the extent required under Administrative Agent, the Intercreditor Agreement. The release of any Collateral from Agent and the terms hereof UK Security Trustee by the Borrower in an officer’s certificate acceptable in form and substance to the Administrative Agent, the Collateral Agent and the UK Security Trustee;
(E) against a part of the Security Documents or the Collateral which release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will does not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without require the consent of the Holders all of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security DocumentsLenders as set forth in Section 12.1(a)(ii), the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that if such release is authorized or permitted consented to by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.Required Lenders;
(bF) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters against the Collateral consisting of credit thereunder) are released, then Receivables Facility Assets upon the Company and entry by the Borrower and/or its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collaterala Permitted Accounts Receivables Securitization; provided, however, that if (y) neither the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of Administrative Agent nor the definition of Permitted Liens, then Collateral Agent nor the Company and its Subsidiaries will UK Security Trustee shall be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, execute any such document on terms which, in its opinion, would expose it to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (z) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of the Borrower or any of its Subsidiaries in respect of) all interests retained by the Borrower and/or any of its Subsidiaries, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral; and
(G) against any cash collateral securing LC Obligations as contemplated by Section 5.4 and Article IX, upon the written request of the Borrower to the Administrative Agent or the applicable Facing Agent, as the case may be, if at the time of the release of the Lien the Senior Secured Leverage Ratio, on a Pro Forma Basis, for the Test Period for the most recently ended Fiscal Quarter was not in excess of 3.75 to 1.00.
(ii) Each of the Lenders hereby directs the Administrative Agent to (or to cause the Administrative Agent to) execute and deliver or file such termination and partial release statements and such other things as are necessary to release Liens to be released pursuant to this Section 12.15 promptly upon the effectiveness of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent release or other representative for such first-priority Liens enter into intercreditor agreements contemplated or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreementpermitted herein.
Appears in 2 contracts
Sources: Credit Agreement (Huntsman International LLC), Credit Agreement (Huntsman International LLC)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time with respect to any series of Notes in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreements and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withSecurity Documents, the Company Intercreditor Agreements and this Indenture, the Issuers and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes of any series and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable any Covenant Party to consummate the Company sale, transfer or any Restricted Subsidiary other disposition of such property or assets to sell, exchange or otherwise dispose of any of the Collateral as permitted extent not prohibited under this Indenture and the Security DocumentsSection 4.10 hereof;
(2) in the case of a Guarantor that is released from its Note Guarantee with respect to the Notes, Notes of such series pursuant to the release terms of this Indenture with respect to the property and other assets of such Guarantor, upon the release of such Guarantor from its Note Guarantee;
(3) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this IndentureIndenture or (ii) upon the designation by Covenant Parent of the issuer of that Capital Stock as an “Unrestricted Subsidiary” under the Senior Credit Facilities in compliance with the terms of the Senior Credit Facilities;
(4) pursuant with respect to any Collateral that becomes an amendment or waiver in accordance with Article 9 of this Indenture“Excluded Asset,” upon it becoming an Excluded Asset;
(5) upon the occurrence of an Investment Grade Event;
(6) in accordance with Section 4.12(d);
(7) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention securing the Senior Credit Facility Obligations are released by the Bank Collateral Agent (other than any release by, or as a result of, payment of the provisions hereof if and to Senior Credit Facility Obligations), upon the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of such Liens;
(8) in connection with any enforcement action taken by the Controlling Collateral or a Agent (as defined in the First Lien Intercreditor Agreement) in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the First Lien Intercreditor Agreement; or
(9) as described in Article 9 hereof.
(b) The Liens on the Collateral securing any series of Notes and the related Note Guarantees with respect to such series also will be terminated and released:
(1) upon payment in contravention full of the terms principal of, together with accrued and unpaid interest on, the Notes of such series and all other Obligations with respect to such series under this Indenture, the related Note Guarantees and the Security Documents with respect to such series that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture with respect to such covered series as described under Sections 8.02 and 8.03, respectively, or a satisfaction and discharge of this Indenture. The Collateral Agent shall promptly execute and deliver Indenture with respect to such documents and instruments series as described under Section 11.01; or
(3) pursuant to the Company Intercreditor Agreements and the Guarantors Security Documents with respect to such series.
(c) Any Lien on any Collateral may reasonably request be released or subordinated to evidence the holder of any Lien on such Collateral securing any Financing Lease Obligations or any Lien on such Collateral that is permitted release without the consent by clause (12) or (16) of the Holders definition of “Permitted Liens” to the Notes. In releasing any Collateral pursuant to extent required by the terms of the Indenture or any Security DocumentsObligations secured by such Liens.
(d) Except as provided under Section 4.12, following the occurrence of a Release Event, the Trustee shallNotes and the Note Guarantees will not be secured by any assets or property, in the absence regardless of its negligence or willful misconduct be entitled whether any Post-Release Event Note Guarantees have been provided by any Subsidiary of Covenant Parent.
(e) With respect to receiveany release of Collateral, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, upon receipt of an Officers’ Officer’s Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and Indenture, the Security Documents and that all conditions precedentthe Intercreditor Agreements, if anyas applicable, to such release have been satisfied.
met and that it is permitted for the Trustee or Notes Collateral Agent to execute and deliver the documents requested by the Issuers in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuers, the Trustee and the Notes Collateral Agent shall, execute, deliver or acknowledge (bat the Issuers’ expense) If all Liens on such property instruments or assets securing First-Priority Liens (including all commitments and letters releases to evidence the release of credit thereunder) are releasedany Collateral permitted to be released pursuant to this Indenture, then the Company and its Subsidiaries will take all steps required to convert Security Documents or the Holders’ second-priority Liens on Intercreditor Agreements. Neither the Trustee nor the Notes Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or Agent shall be liable for any Guarantor subsequently incurs first-priority Liens such release undertaken in reliance on clause 12 upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document or in the Intercreditor Agreements to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel. Any certificate or opinion required by Section 314(d) of the definition Trust Indenture Act in connection with obtaining the release of Permitted LiensCollateral may be made by an Officer of a Covenant Party, then except in cases where Section 314(d) of the Company and its Subsidiaries will Trust Indenture Act requires that such certificate or opinion be made by an independent engineer, appraiser or other expert. Notwithstanding anything to the contrary in this Indenture, no Covenant Party shall be required to reinstitute comply with all or any portion of Section 314(d) of the second-priority security arrangement with respect Trust Indenture Act if they determine in good faith, based on the advice of counsel, that under the terms of that section and/or any interpretation or guidance as to the Collateral in favor meaning thereof of the NotesSEC and its staff, whichincluding “no action” letters or exemptive orders, in all or the case relevant portion of any such subsequent first-priority Liens, will be second-priority Liens on Section 314(d) of the Collateral securing such first-priority Liens Trust Indenture Act is inapplicable to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreementreleased Collateral.
Appears in 2 contracts
Sources: Base Indenture (Dell Technologies Inc.), Base Indenture (Dell Technologies Inc)
Release of Collateral. (aA) Collateral may be released from Subject to the terms of the Intercreditor Agreement and to Section 11.05(D), the Liens created securing the Obligations on the applicable Collateral shall be automatically terminated and released without further action by any party (other than satisfaction of any requirements in the Notes Security Documents, if any), in whole or in part, as the case may be: (i) upon any disposition of any portion of Collateral in accordance with a disposition permitted under the terms of any Priority Lien Debt Document; provided that Liens on such Collateral under any Priority Lien Debt Document are also released under any such Priority Lien Debt Document substantially concurrently; (ii) upon the full and final payment and performance of all Obligations of the Company Indenture Parties under the Indenture Documents at any time or from time to time, the satisfaction and discharge of this Indenture and the Security other Indenture Documents may be terminatedin accordance with Article 9; (iii) as described under Section 8.03; (iv) if the Collateral is owned by a Guarantor, in each case, upon release of such Guarantor from its Subsidiary Guarantee of the Obligations in accordance with the provisions hereof and the terms of the Intercreditor Agreement and/or the Priority Lien Debt Document; (v) to the extent the Liens on the Collateral securing the Priority Lien Secured Obligations are released by the First Lien Notes Collateral Trustees (other than a discharge or release by or as a result of payment under such guarantee after the occurrence of a payment default or acceleration thereunder (it being understood that a release subject to a contingent reinstatement is still a release)), upon release of such Liens and (vi) pursuant to the Intercreditor Agreement and the Notes Security Documents.
(B) Without the necessity of any consent of or notice to the Trustee or any Holder of the Notes, any Company Indenture Party may request and instruct the Collateral Trustee to, on behalf of each Holder of Notes, (i) execute and deliver to any Company Indenture Party, as the case may be, for the benefit of any Person, such release documents as may be reasonably requested, of all or any Liens held by the Collateral Trustee in any Collateral securing the Obligations, and (ii) deliver any such assets in the possession of the Collateral Trustee to any Company Indenture Party, as the case may be; and Collateral Trustee shall as soon as practicable take such actions provided that any such release complies with and is expressly permitted in accordance with the terms of this Indenture, the Notes Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to Intercreditor Agreement and is accompanied by an Officers’ Officer’s Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:Counsel.
(1C) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of Liens securing the Security Documents Obligations or the release of, in whole or in part, the Liens securing the Obligations created by the Security Documents, or the termination any of the Notes Security Documents, Documents will not be deemed to impair the Liens on securing the Collateral Obligations in contravention of the provisions hereof if and to the extent that the Collateral or the Liens on Collateral securing the Obligations are releasedreleased pursuant to the terms of this Indenture, or the applicable Notes Security Documents are terminated, pursuant to this Indenture or and the applicable Security DocumentsIntercreditor Agreement. The Trustee and each Each of the Holders acknowledge of the Notes acknowledges that a release of Collateral or a Lien Liens securing the Obligations strictly in accordance with the terms of this Indenture, the Notes Security Documents and this Indenture the Intercreditor Agreement will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of Notes Security Documents or otherwise contrary to the terms of this Indenture. .
(D) The Company shall furnish to the Collateral Agent shall promptly execute and deliver such documents and instruments as the Company Trustee and the Guarantors may reasonably request Trustee on or prior to evidence any such permitted release without the consent proposed releases of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Officer’s Certificate certifying and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and stating that all conditions precedent, if any, requirements relating to such release have been satisfied.
(b) If all Liens on complied with and that such property release has been authorized by, permitted by and made in accordance with the provisions of this Indenture, the relevant Notes Security Documents and the Intercreditor Agreement. No release of the Collateral shall be effective against the Collateral Trustee, the Trustee or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Holders until the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect has delivered to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes Trustee and the Trustee the Officer’s Certificate and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementOpinion of Counsel required under this Section 11.05.
Appears in 2 contracts
Sources: Indenture (Maxeon Solar Technologies, Ltd.), Indenture (Maxeon Rooster HoldCo, Ltd.)
Release of Collateral. (a) Collateral may be released from the Liens and security interests created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, any Applicable Intercreditor Arrangement and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents, any Applicable Intercreditor Arrangement and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company applicable property and the Guarantors will assets shall be entitled to a release of assets included in the Collateral automatically released from the Liens securing the Notes, Notes and Note Guarantees without the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided need for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, any further action by any Person under any one or more of the following circumstances:
(1) subject to Section 4.18, to enable the Company Issuer or any Restricted Subsidiary Note Guarantor to sellconsummate any sale, exchange transfer or otherwise dispose other disposition of such Collateral to any of Person other than the Collateral as permitted Issuer or a Note Guarantor, to the extent such sale, transfer or other disposition is not prohibited under this Indenture and the Security DocumentsSection 4.12;
(2) in the case of a Note Guarantor that is released from its Guarantee Note Guarantee, with respect to the Notesproperty and other assets of such Note Guarantor, upon the release of such Note Guarantor from its Note Guarantee (it being understood that in the property and assets case of such Guarantorthe Seadrift Guarantee Release, the outstanding Equity Interests in Seadrift held by Holdings or any of its Subsidiaries (other than Subsidiaries of Seadrift) shall continue to be pledged hereunder);
(3) if with respect to Collateral that is Capital Stock, upon the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture;
(4) pursuant with respect to any Collateral that becomes an amendment or waiver in accordance with Article 9 of this Indenture“Excluded Asset,” upon it becoming an Excluded Asset;
(5) to the extent required under the Intercreditor Agreement. The release of in accordance with Section 4.10(b);
(6) [reserved];
(7) in connection with any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien enforcement action taken in accordance with the terms of any Applicable Intercreditor Arrangement; or
(8) as described under Article 9.
(b) The Liens on the Collateral securing the Notes and the related Note Guarantees also shall automatically and without the need for any further action by any Person be terminated and released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations in respect of the Notes under this Indenture, the related Note Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest;
(2) upon a Legal Defeasance or Covenant Defeasance with respect to the Notes under this Indenture will as described under Sections 8.02 and 8.03, respectively, or a satisfaction and discharge of this Indenture with respect to the Notes as described under Section 11.01; or
(3) pursuant to any Applicable Intercreditor Arrangement and the Security Documents with respect to the Notes, in each case, other than any Contingent Obligations (including contingent indemnity obligations not be deemed for yet due or payable).
(c) In addition, any purpose to be an impairment Lien of the Notes Collateral Agent on any Collateral may be subordinated to the holder of any Lien on such Collateral that is created, incurred or assumed pursuant to clauses (1), (4), (5), (6) (solely to the extent such Lien relates to Indebtedness incurred under Section 4.06(b)(4)), (11)(c), (12), (14) (other than any Lien on the Collateral in contravention Equity Interests of any Subsidiary Guarantor), (17), (19), (20), (22), (23), (25), (26) (to the extent the relevant Lien covers cash collateral posted to secure the relevant obligation), (29), (31), (32), (33), (35), (37), (42) and/or (44) of the terms definition of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as “Permitted Liens” to the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to extent required by the terms of the Indenture or Obligations secured by such Liens.
(d) With respect to any Security Documentsrelease of Collateral, the Trustee shall, in the absence upon receipt of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Officer’s Certificate and an Opinion of Counsel certifying stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentany Applicable Intercreditor Arrangement, if anyas applicable, to such release have been satisfied.
met and that it is permitted for the Trustee or Notes Collateral Agent to execute and deliver the documents requested by Holdings in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee and the Notes Collateral Agent shall execute, deliver or acknowledge (bat Holdings’ expense) If all Liens on such property instruments or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then releases to evidence the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents or any Applicable Intercreditor Arrangement and on shall do or cause to be done (at the terms and conditions Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document or in any Applicable Intercreditor Arrangement to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate. Each Holder, by accepting a Note, consents and agrees to the same form as terms of this Section 12.02, and authorizes and directs the Trustee and the Notes Collateral Agent to execute (at Holdings’ expense) any documents that are necessary or convenient to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents or any Applicable Intercreditor AgreementArrangement.
Appears in 2 contracts
Sources: Indenture (Graftech International LTD), Indenture (Graftech International LTD)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company second-priority Liens on the Collateral will be automatically released with respect to the Notes and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Second Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable any Specified Collateral Party to consummate the Company sale, transfer or any Restricted Subsidiary to sell, exchange other disposition (including by the termination of capital leases or otherwise dispose of any the repossession of the Collateral as leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Issuer or a Subsidiary of the Issuer) to the extent permitted under this Indenture and by Section 3.5 or in connection with the Security DocumentsStaggered Emergence;
(2) in the case of a Guarantor Specified Collateral Party that is released from its Guarantee pledge of Collateral with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(3) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturean Investment Grade Event;
(4) pursuant to the release of Collateral Excess Proceeds or Excess Proceeds that remain unexpended after the conclusion of an amendment Asset Disposition Offer or waiver a Collateral Asset Disposition Offer conducted in accordance with Article 9 of this Indenture;
(5) as described under Article IX hereof;
(6) if the property subject to such Lien becomes Excluded Asset;
(7) to release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Security Document to the holder of any Lien on such property that is a Permitted Lien under clauses (9) or (12) (in the case of clause (12), upon the reasonable request of the Issuer, to the extent required under by the Intercreditor Agreement. The release terms of the agreements governing such Permitted Lien) of the definition thereof;
(8) if any Specified Collateral Party ceases to be a Restricted Subsidiary, or becomes excluded from the terms hereof and of the Security Documents or the release ofCollateral, in whole each case as a result of a transaction not prohibited hereunder or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed designation permitted hereunder;
(9) [reserved]; or
(10) as to impair the Liens on the any asset constituting Collateral in contravention of the provisions hereof if and only to the extent that the Liens on such Collateral are releasedin favor of the First Priority Collateral Agent in respect of the Senior Secured Credit Facility Obligations have been released in accordance with their terms, or except a release as a result of the repayment in full of the Indebtedness then outstanding in respect of the Senior Secured Credit Facility Obligations.
(b) Notwithstanding anything to the contrary in the Security Documents and this Indenture, the Liens on the Collateral securing the Notes and the Note Guarantees also will be automatically released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Note Guarantees and the Security Documents that are terminateddue and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.2 and Section 8.3 hereof, or a discharge of this Indenture as described under Section 11.1 hereof;
(3) pursuant to the Security Documents; or
(4) subject to Section 9.2, if the release of such Lien is approved, authorized or ratified in writing by Holders of at least a majority in principal amount of the Notes outstanding at such time.
(c) Notwithstanding anything contained herein to the contrary, upon request by the Collateral Agent at any time, the Holders shall confirm in writing the Collateral Agent’s irrevocable authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document; provided that the absence of such confirmation shall not affect in any way the validity of the automatic releases of security interest or Guarantee contemplated by this Indenture or the Collateral Agent obligations to comply with the provisions of the immediately following sentence. The Collateral Agent shall, at the Issuer’s expense and upon receipt of an Officer’s Certificate and Opinion of Counsel, execute and deliver to the Issuer or the applicable Grantor such documents and such amendments, modifications or supplements to any Security Documents, in each case as the Issuer or such Guarantor may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to evidence the release of such Grantor from its obligations under the Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document.
(d) Notwithstanding Section 12.2(a)(3), if, after any Investment Grade Event, both of the Rating Agencies withdraw their Investment Grade Status or downgrade the rating assigned to the Notes below an Investment Grade Status, the Issuer and the Grantors shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes valid, perfected, second priority security interests (subject to Permitted Liens) in the Collateral within ninety (90) days after such Reversion Date or as soon as reasonably practicable thereafter.
(e) With respect to any release of Collateral, upon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture and the Security Documents to such release have been met, the Trustee (if applicable) and the Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) any instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose shall do or cause to be an impairment done (at the Issuer’s expense) all acts reasonably requested of them to release such ▇▇▇▇ as soon as is reasonably practicable. Neither the Lien on Trustee nor the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent instrument of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture release, satisfaction or any Security Documentstermination, the Trustee shallunless and until it receives such Officer’s Certificate, in the absence of its negligence or willful misconduct upon which it shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedconclusively rely.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 2 contracts
Sources: Indenture (Frontier Communications Corp), Indenture (Frontier Communications Corp)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company first priority Liens on the Collateral will be automatically released with respect to the Notes and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable any Specified Collateral Party to consummate the Company sale, transfer or any Restricted Subsidiary to sell, exchange other disposition (including by the termination of capital leases or otherwise dispose of any the repossession of the Collateral as leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Issuer or a Subsidiary of the Issuer) to the extent permitted under this Indenture and the Security Documentsby Section 3.5;
(2) in the case of a Guarantor Specified Collateral Party that is released from its Guarantee pledge of Collateral with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such GuarantorSpecified Collateral Party;
(3) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturean Investment Grade Event;
(4) pursuant to the release of Collateral Excess Proceeds or Excess Proceeds that remain unexpended after the conclusion of an amendment Asset Disposition Offer or waiver a Collateral Asset Disposition Offer conducted in accordance with Article 9 of this Indenture;
(5) as described under Article IX hereof;
(6) if the property subject to such Lien becomes Excluded Asset;
(7) to release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Security Document to the holder of any Lien on such property that is a Permitted Lien under clauses (9) or (12) (in the case of clause (12), upon the reasonable request of the Issuer, to the extent required under by the Intercreditor Agreement. The release terms of the agreements governing such Permitted Lien) of the definition thereof; or
(8) if any Specified Collateral Party ceases to be a Restricted Subsidiary, or becomes excluded from the terms hereof and Collateral, in each case as a result of a transaction not prohibited hereunder or designation permitted hereunder.
(b) Notwithstanding anything to the contrary in the Security Documents or the release ofand this Indenture, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral securing the Notes also will be automatically released:
(1) upon payment in contravention full of the provisions hereof if principal of, together with accrued and to unpaid interest on, the extent that the Liens on Collateral are released, or Notes and all other Obligations under this Indenture and the Security Documents that are terminateddue and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.2 and Section 8.3 hereof, or a discharge of this Indenture as described under Section 11.1 hereof;
(3) pursuant to the Security Documents; or
(4) subject to Section 9.2, if the release of such Lien is approved, authorized or ratified in writing by Holders of at least a majority in principal amount of the Notes outstanding at such time.
(c) Notwithstanding anything contained herein to the contrary, upon request by the Collateral Agent at any time, the Holders shall confirm in writing the Collateral Agent’s irrevocable authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under a Note Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document; provided that the absence of such confirmation shall not affect in any way the validity of the automatic releases of security interest or Guarantee contemplated by the Note Documents or the Collateral Agent obligations to comply with the provisions of the immediately following sentence. The Collateral Agent shall, at the Issuer’s expense and upon receipt of an Officer’s Certificate and Opinion of Counsel, execute and deliver to the Issuer or the applicable Grantor such documents and such amendments, modifications or supplements to any Security Documents, in each case as the Issuer or such Guarantor may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to evidence the release of such Grantor from its obligations under the Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document.
(d) Notwithstanding Section 12.2(a)(3), if, after any Investment Grade Event, both of the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating, the Issuer and the Grantor shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes valid, perfected, first priority security interests (subject to Permitted Liens) in the Collateral within ninety (90) days after such Reversion Date or as soon as reasonably practicable thereafter.
(e) With respect to any release of Collateral, upon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture and the Security Documents, as applicable, to such release have been met, the Trustee (if applicable) and the Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) any instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose shall do or cause to be an impairment done (at the Issuer’s expense) all acts reasonably requested of them to release such ▇▇▇▇ as soon as is reasonably practicable. Neither the Lien on Trustee nor the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent instrument of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture release, satisfaction or any Security Documentstermination, the Trustee shallunless and until it receives such Officer’s Certificate, in the absence of its negligence or willful misconduct upon which it shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedconclusively rely.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 2 contracts
Sources: Indenture (Frontier Communications Parent, Inc.), Indenture (Frontier Communications Parent, Inc.)
Release of Collateral. (a) Subject to Section 11.03(b) and 11.04 hereof, Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withDocuments, the Intercreditor Agreement or as provided hereby. The Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct Trustee shall release, or instruct the Trustee and Notes Collateral Agent to modifyrelease, release and adjust as applicable, the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security DocumentsGuarantors to consummate the sale, transfer, lease or other disposition of such property or assets to the extent not prohibited under Section 4.06;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;; or
(54) if the Notes have been defeased or this Indenture has been discharged pursuant to Article 8. The junior priority lien on the ABL Collateral securing the Notes will terminate and be released automatically if the senior priority liens on the ABL Collateral are released by the Bank Collateral Agent (even if, at the time of such release of such senior priority liens, an Event of Default shall have occurred and be continuing under this Indenture), including, without limitation, in connection with a sale, transfer or disposition of ABL Collateral that is (i) effected by the Company or any Guarantor to the extent required under permitted by the Intercreditor Agreement. The release ABL Facility or otherwise permitted with the consent of, or at the direction of, the Bank Collateral Agent or (ii) occurs in connection with the foreclosure of, or other exercise of remedies with respect to, such ABL Collateral by the Bank Collateral Agent (except, in each case, with respect to any Collateral from the terms hereof and proceeds of such sale, transfer or disposition that remain after satisfaction in full of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination Lenders Debt). Upon receipt of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Officer’s Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentDocuments, if any, to such release have been satisfiedmet and any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Notes Collateral Agent shall execute, deliver or acknowledge (at the Company’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents or the Intercreditor Agreement.
(b) If all Liens on such property At any time when a Default or assets securing First-Priority Liens Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (including all commitments whether by declaration or otherwise) and letters of credit thereunder) are released, the Trustee (if not then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Notes Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 Agent) has delivered a notice of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect acceleration to the Notes Collateral in favor Agent, no release of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens pursuant to the same extent provided by provisions of this Indenture or the Security Documents and on will be effective as against the terms and conditions of Holders, except as otherwise provided in this Indenture, the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent Security Documents or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from The Company, the Liens created by the Security Documents at any time or from time to time, Subsidiary Guarantors and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors Grantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize Subsidiary Guarantees (and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, such Liens shall be automatically released) under any one or more of the following circumstances:
(1i) to enable the Company, any Subsidiary Guarantor or Grantor to consummate the sale, transfer or other disposition (including by the termination of Capital Lease Obligations or the repossession of the leased property subject to Capital Lease Obligations by the lessor and by means of a Restricted Payment) of such Collateral to any Person other than a Subsidiary Guarantor or Grantor, to the extent such sale, transfer or other disposition is not prohibited by Section 4.06;
(ii) in the case of a Subsidiary Guarantor that is released from its Guarantee, with respect to the property and other assets of such Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Guarantee;
(iii) in the case of a Grantor that ceases to be a Restricted Subsidiary, with respect to the property and other assets constituting Collateral of such Grantor, upon such Grantor ceasing to be a Restricted Subsidiary;
(iv) with respect to Collateral that is Capital Stock, upon (A) the dissolution or liquidation of the Company of that Capital Stock that is not prohibited by this Indenture or (B) upon the designation by the Company of such Company of Capital Stock as an Unrestricted Subsidiary under this Indenture;
(v) with respect to any Restricted Collateral that becomes an “Excluded Asset,” upon it becoming an Excluded Asset;
(vi) in accordance with the Section 4.13(b);
(vii) to the extent the Liens on the Collateral securing the Senior Secured Credit Facilities Obligations are released by the Bank Collateral Agent (other than a discharge or release by or as a result of payment in full under such guarantee after the occurrence of a payment default or acceleration thereunder (it being understood that a release subject to a contingent reinstatement is still a release)), upon the release of such Liens, at which time the Notes Collateral Agent promptly shall execute, if applicable, and deliver to the Bank Collateral Agent, the Company, the Subsidiary Guarantor or the Grantor of such Liens (at the sole cost and expense of the Grantors) such termination statements, releases, authorizations and other documents and instruments, and shall take or authorize the Company, such Subsidiary Guarantor or Grantor to selltake such action (including any recordation, exchange filing or otherwise dispose giving of notice), as the Company, such Subsidiary Guarantor or such Grantor may reasonably request to effectively confirm such release;
(viii) in connection with any enforcement action taken by the Applicable Collateral Agent in accordance with the terms of the Pari Passu Intercreditor Agreement;
(ix) as described under Article 9 of this Indenture; or
(x) the Company exercising its legal defeasance option or its covenant defeasance option or if the Company’s obligations under this Indenture are discharged in accordance with the terms of this Indenture. .
(b) The Liens on the Collateral securing the Notes and the related Guarantees also shall automatically, subject to Section 12.02(d) below, and without the need for any further action by any Person be terminated and released,
(i) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations in respect of the Notes under this Indenture, the related Subsidiary Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid,
(ii) upon a legal defeasance or covenant defeasance with respect to the Notes under this Indenture as described above in Article 8 or a satisfaction and discharge of this Indenture with respect to the Notes as described under Article 8 or
(iii) pursuant to the Pari Passu Intercreditor Agreement described above and the Security Documents with respect to the Notes, in each case, other than any contingent obligations (including contingent indemnity obligations not yet due or payable).
(c) In addition, any Lien on any Collateral may be subordinated to the holder of any Permitted Lien on such Collateral that is permitted by clauses (a), (d), (e) , (i), (k) (solely with respect to cash deposits), (p), (q) (other than with respect to self-insurance arrangements), (r) (solely to the extent constituting Excluded Assets), (s), (u), (w) (solely to the extent relating to a lien of the type allowed pursuant to clause (i) or (k) (solely with respect to cash deposits) of the definition thereof), (z) (solely to the extent the Lien of the Notes Collateral Agent on such property is not, pursuant to such agreements, permitted to be senior to or pari passu with such Liens), (cc) (solely with respect to cash deposits), (hh), (mm) (only for so long as required to be secured for such letter of intent or investment), (ss), (tt), (vv), and (ww) (only for so long as required to be secured for purposes of such cash management arrangements).
(d) The Trustee and the Notes Collateral Agent shall promptly execute and deliver to the Company, the Subsidiary Guarantor or the Grantor such documents as the Company, such Subsidiary Guarantor or such Grantor may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents, or to evidence the release or subordination of such Subsidiary Guarantor from its obligations under the Guarantee, in each case in accordance with the terms of this Section 12.02; provided that, with respect to the release pursuant to clauses (a)(i),(iii), (iv) or (v) of this Section 12.02, if reasonably requested by the Trustee, the Company shall have delivered to the Trustee a certificate of a Responsible Officer of the Company certifying that the release of such Collateral is permitted under this Indenture and the Security Documents;
Documents (2) in and for the case avoidance of a doubt, no other documentation or information shall be required to be provided by the Company, any Subsidiary Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreementany Grantor). The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Notes Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct shall be entitled to receive, rely and shall rely exclusively on such Responsible Officer’s certification and the Notes Collateral Agent and the Trustee will be fully exculpated from any liability and shall be fully protected in relying upon, in addition and shall not have any liability whatsoever to any Notes Secured Party as a result of such reliance or the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case consummation of any such subsequent first-priority Liensrelease or subordination. Additionally, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject Notes Collateral Agent shall promptly return any possessory collateral to an intercreditor agreement the Company in substantially connection with the same releases of Collateral contemplated by this Section 12.02; provided that in the event that the Trustee or the Notes Collateral Agent loses or misplaces any possessory collateral delivered to the Trustee or the Notes Collateral Agent by the Company, any Subsidiary Guarantor or any Grantor, upon reasonable request of the Company, the Trustee or the Notes Collateral Agent shall provide a loss affidavit to the Company, in form as and substance reasonably satisfactory to the Intercreditor AgreementCompany.
Appears in 1 contract
Sources: Indenture (Qnity Electronics, Inc.)
Release of Collateral. In addition to and subject to the terms of the Collateral Agency and Intercreditor Agreement, the Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes outstanding or any other Obligations under this Indenture, and the right of the Holders and such Obligations to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will terminate and be discharged:
(a1) Collateral may be released from upon payment in full of the Liens created by principal of, together with premium (if any) and accrued and unpaid interest on, the Security Documents at any time or from time to time, Notes and all other Obligations under this Indenture and the Security Documents may that are due and payable at or prior to the time such principal, together with premium (if any) and accrued and unpaid interest, are paid (including pursuant to a satisfaction and discharge of this Indenture as set in Article 8 hereof);
(2) in respect of the property and assets of a Subsidiary Guarantor, (i) upon the designation of such Subsidiary Guarantor to be terminatedan Unrestricted Subsidiary in accordance with Section 4.04, and such Subsidiary Guarantor shall be automatically released from its obligations hereunder and under the Security Documents, (ii) upon the release of such Guarantee pursuant to Section 10.02(b) or (iii) upon the release or discharge of such Guarantee in each caseaccordance with this Indenture;
(3) upon a legal defeasance or covenant defeasance under this Indenture as described in Section 8.01; and
(4) in whole or in part, as permitted by Article 9. If the Collateral Trustee is releasing Liens in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company Indenture or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of Security Document and if the Collateral as permitted under Issuer has delivered the certificates and documents required by this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on then the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such additional documents and instruments as the Company Issuer and the Guarantors may reasonably request to evidence any such permitted release without the further consent of the Holders of the NotesHolders. In releasing any Collateral All actions taken pursuant to the terms provisions described in the foregoing provisions of this Section 11.03 will be at the sole cost and expense of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture Issuer and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedapplicable Guarantor.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Intelsat S.A.)
Release of Collateral. Each Lender hereby consents to the release and hereby directs Collateral Agent to release (or in the case of clause (b)(ii) below, release or subordinate) the following:
(a) any Guarantor if all of the stock of such Subsidiary owned by Borrower is sold or transferred in a transaction permitted under the Loan Documents (including pursuant to a valid waiver or [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL AND (II) IS THE TYPE OF INFORMATION THAT THE REGISTRANT BOTH CUSTOMARILY AND ACTUALLY TREATS AS PRIVATE AND CONFIDENTIAL. consent), to the extent that, after giving effect to such transaction, such Subsidiary would not be required to guaranty any Obligations pursuant to any Loan Document; and
(b) any Lien held by Collateral may be released from Agent for the Liens created benefit of the Secured Parties against (i) any Collateral that is sold or otherwise disposed of by Borrower in a transaction permitted by the Security Loan Documents at (including pursuant to a valid waiver or consent), (ii) any time or from time Collateral subject to timea Lien that is expressly permitted under clause (c) of the definition of the term “Permitted Lien” and (iii) all of the Collateral and Borrower, upon (A) termination of all of the Commitments, (B) the payment in full in cash of all of the Obligations (other than (i) inchoate indemnity obligations, and the Security Documents may be terminated(ii) other obligations that, by their terms, survive termination of this Agreement, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have for which no claim has been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notesmade), and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5C) to the extent required under requested by Collateral Agent, receipt by Collateral Agent and Lenders of liability releases from Borrower in form and substance acceptable to Collateral Agent (the Intercreditor Agreement. The release of any Collateral from the terms hereof and satisfaction of the Security Documents or the release of, conditions in whole or in partthis clause (iii), the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied“Termination Date”).
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Cogent Biosciences, Inc.)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time with respect to any series of Notes in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreements and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withSecurity Documents, the Company Intercreditor Agreements and this Indenture, the Issuers and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes of any series and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable any Covenant Party to consummate the Company sale, transfer or any Restricted Subsidiary other disposition of such property or assets to sell, exchange or otherwise dispose of any of the Collateral as permitted extent not prohibited under this Indenture and the Security DocumentsSection 4.10 hereof;
(2) in the case of a Guarantor that is released from its Note Guarantee with respect to the NotesNotes of such series pursuant to the terms of this Indenture, upon the release of the property and assets of from such GuarantorNote Guarantee;
(3) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this IndentureIndenture or (ii) upon the designation by Covenant Parent of the issuer of that Capital Stock as an “Unrestricted Subsidiary” under the Senior Credit Facilities in compliance with the terms of the Senior Credit Facilities;
(4) pursuant with respect to any Collateral that becomes an amendment or waiver in accordance with Article 9 of this Indenture“Excluded Asset,” upon it becoming an Excluded Asset;
(5) upon the occurrence of an Investment Grade Event;
(6) in accordance with Section 4.12(d);
(7) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention securing the Senior Credit Facility Obligations are released by the Bank Collateral Agent (other than any release by, or as a result of, payment of the provisions hereof if and to Senior Credit Facility Obligations), upon the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of such Liens;
(8) in connection with any enforcement action taken by the Controlling Collateral or a Agent (as defined in the First Lien Intercreditor Agreement) in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the First Lien Intercreditor Agreement; or
(9) as described in Article 9 hereof.
(b) The Liens on the Collateral securing any series of Notes and the related Note Guarantees with respect to such series also will be terminated and released:
(1) upon payment in contravention full of the terms principal of, together with accrued and unpaid interest on, the Notes of such series and all other Obligations with respect to such series under this Indenture, the related Note Guarantees and the Security Documents with respect to such series that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture with respect to such series as described under Sections 8.02 and 8.03, respectively, or a satisfaction and discharge of this Indenture. The Collateral Agent shall promptly execute and deliver Indenture with respect to such documents and instruments series as described under Section 11.01; or
(3) pursuant to the Company Intercreditor Agreements and the Guarantors Security Documents with respect to such series.
(c) Any Lien on any Collateral may reasonably request be released or subordinated to evidence the holder of any Lien on such Collateral securing any Capitalized Lease Obligations or any Lien on such Collateral that is permitted release without the consent by clause (12) or (16) of the Holders definition of “Permitted Liens” to the Notes. In releasing any Collateral pursuant to extent required by the terms of the Indenture or any Security DocumentsObligations secured by such Liens.
(d) Except as provided under Section 4.12, following the occurrence of a Release Event, the Trustee shallNotes and the Note Guarantees will not be secured by any assets or property, in the absence regardless of its negligence or willful misconduct be entitled whether any Post-Release Event Note Guarantees have been provided by any Subsidiary of Covenant Parent.
(e) With respect to receiveany release of Collateral, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, upon receipt of an Officers’ Officer’s Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and Indenture, the Security Documents and that all conditions precedentthe Intercreditor Agreements, if anyas applicable, to such release have been satisfied.
met and that it is permitted for the Trustee or Notes Collateral Agent to execute and deliver the documents requested by the Issuers in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuers, the Trustee and the Notes Collateral Agent shall, execute, deliver or acknowledge (bat the Issuers’ expense) If all Liens on such property instruments or assets securing First-Priority Liens (including all commitments and letters releases to evidence the release of credit thereunder) are releasedany Collateral permitted to be released pursuant to this Indenture, then the Company and its Subsidiaries will take all steps required to convert Security Documents or the Holders’ second-priority Liens on Intercreditor Agreements. Neither the Trustee nor the Notes Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or Agent shall be liable for any Guarantor subsequently incurs first-priority Liens such release undertaken in reliance on clause 12 upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document or in the Intercreditor Agreements to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel. Any certificate or opinion required by Section 314(d) of the definition Trust Indenture Act in connection with obtaining the release of Permitted LiensCollateral may be made by an Officer of a Covenant Party, then except in cases where Section 314(d) of the Company and its Subsidiaries will Trust Indenture Act requires that such certificate or opinion be made by an independent engineer, appraiser or other expert. Notwithstanding anything to the contrary in this Indenture, no Covenant Party shall be required to reinstitute comply with all or any portion of Section 314(d) of the second-priority security arrangement with respect Trust Indenture Act if they determine in good faith, based on the advice of counsel, that under the terms of that section and/or any interpretation or guidance as to the Collateral in favor meaning thereof of the NotesSEC and its staff, whichincluding “no action” letters or exemptive orders, in all or the case relevant portion of any such subsequent first-priority Liens, will be second-priority Liens on Section 314(d) of the Collateral securing such first-priority Liens Trust Indenture Act is inapplicable to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreementreleased Collateral.
Appears in 1 contract
Sources: Base Indenture (Denali Holding Inc.)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and time with respect to the Security Documents may be terminated, in each case, Notes in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company Issuer and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Notes Obligations under any one or more of the following circumstances:
(1) to enable the Company Issuer or any Restricted Subsidiary Guarantor to sellconsummate the sale, exchange transfer or otherwise dispose other disposition of any of such property or assets to the Collateral as permitted extent not prohibited under this Indenture and the Security DocumentsSection 4.10 hereof;
(2) in the case of a Guarantor that is released from its Note Guarantee with respect to the Notes, Notes pursuant to the release terms of this Indenture with respect to the property and other assets of such Guarantor, upon the release of such Guarantor from such Note Guarantee;
(3) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this IndentureIndenture or (ii) upon the designation by Issuer of the issuer of that Capital Stock as an Unrestricted Subsidiary;
(4) pursuant with respect to any Collateral that becomes an amendment or waiver in accordance with Article 9 of this Indenture“Excluded Asset”, upon it becoming an Excluded Asset;
(5) upon the occurrence of an Investment Grade Event;
(6) in accordance with Section 4.12(b);
(7) (i) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention securing the First-Out Senior Credit Facilities Indebtedness are released at the direction of the provisions hereof if and First-Out Bank Representative in compliance with the terms of the Senior Credit Facilities (other than any release by, or as a result of, payment of such Indebtedness), upon the release of such Liens or (ii) to the extent that the Liens on the Collateral securing the Second-Out Senior Credit Facilities Indebtedness are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each released as a result of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for New Credit Agreement (other than a release by, or as a result of, payment of such Indebtedness), upon the release of such Liens;
(8) in connection with any purpose to be an impairment enforcement action taken by the Collateral Trustee (acting at the direction of the Lien on the Collateral Controlling Representative) in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to accordance with the terms of the Collateral Trust Agreement; or
(9) pursuant to Article 9 hereof.
(b) The Liens on the Collateral securing the Notes and the related Note Guarantees also will be terminated and released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations with respect to the Notes under this Indenture, the related Note Guarantees and the Security Documents with respect to the Notes that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture pursuant to Sections 8.02 and 8.03, respectively, or a satisfaction and discharge of this Indenture pursuant to Section 11.01; or
(3) pursuant to the Intercreditor Agreements and the Security Documents with respect to the Notes.
(c) Any Lien on any Collateral may be released or subordinated to the holder of any Lien on such Collateral securing any Financing Lease Obligations or any Security Documents, Lien on such Collateral that is permitted by clause (16) of the Trustee shall, in the absence definition of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition “Permitted Liens” to the documents extent required by Section 13.04the terms of the Obligations secured by such Liens.
(d) With respect to any release of Collateral, upon receipt of an Officers’ Officer’s Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentDocuments, if anyas applicable, to such release have been satisfied.
(b) If all Liens on such property met and that it is permitted for the Trustee or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on Trustee to execute and deliver the Collateral; provideddocuments requested by the Issuer in connection with such release and any necessary or proper instruments of termination, howeversatisfaction or release prepared by the Issuer, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company Trustee and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of Trustee shall, execute, deliver or acknowledge (at the Notes, which, in Issuer’s expense) such instruments or releases to evidence the case release of any such subsequent first-priority LiensCollateral permitted to be released pursuant to this Indenture, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents or the Intercreditor Agreements. Neither the Trustee nor the Collateral Trustee shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and on notwithstanding any term hereof or in any Security Document to the terms and conditions of the security documents relating to such first-priority Lienscontrary, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject the Collateral Trustee shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Note Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Note Security Documents Documents, the Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withNote Security Documents, the Company Intercreditor Agreement and this Indenture, the Issuer and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Subsidiary Guarantees under any one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the NotesSubsidiary Guarantee, the release of the property and assets of such Guarantor;
(2) with respect to any Collateral that becomes an “Excluded Asset” (as such term is defined in the Security Agreement) upon it becoming an Excluded Asset;
(3) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturean Investment Grade Event;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indentureclause (d) under Section 4.07 hereof;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of securing Obligations under the provisions hereof if and to Credit Agreement are released by the extent that the Liens on Credit Agreement Collateral are releasedAgent (other than any release by, or as a result of, payment of such obligations), upon the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of such Liens;
(6) in part, as to any property that is Collateral or a Lien that is shared with the other Priority Obligations (“Shared Collateral”) in accordance with the terms Intercreditor Agreement and that is released (i) in connection with the foreclosure upon, or other exercise of remedies with respect to, such Shared Collateral by the Controlling Collateral Agent or (ii) in connection with any sale of such Shared Collateral under the Bankruptcy Code, in each case, as provided in the Intercreditor Agreement; or
(7) as described in Article 9 hereof.
(b) The security interests in all Collateral securing the Notes and the Subsidiary Guarantees also will be released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Subsidiary Guarantees and the Note Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon the exercise of the Legal Defeasance option or Covenant Defeasance option, in each case in compliance with the provisions of Article 8 or the satisfaction or discharge of this Indenture in compliance with the provisions of Article 12; or
(3) pursuant to the Intercreditor Agreement and the Note Security Documents.
(c) Except as provided under Section 4.07 or Section 11.07, following the occurrence of a Release Event, the Notes will not be deemed for secured by any purpose assets or property.
(d) With respect to be an impairment any release of the Lien on the Collateral in contravention Collateral, upon receipt of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and Indenture, the Note Security Documents and that all conditions precedentthe Intercreditor Agreement, if anyas applicable, to such release have been satisfied.
(b) If all Liens on such property met and that it is permitted for the Trustee or assets securing First-Priority Liens (including all commitments Notes Collateral Agent to execute and letters of credit thereunder) are released, then deliver the Company documents requested and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided prepared by the Security Documents Issuer in connection with such release and on the terms and conditions any necessary or proper instruments of the security documents relating to such first-priority Lienstermination, with the second-priority Lien held either satisfaction or release prepared by the administrative agentIssuer, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject the Notes Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to an intercreditor agreement in substantially evidence the same form as release of any Collateral permitted to be released pursuant to this Indenture, the Note Security Documents or the Intercreditor Agreement. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Note Security Document or in the Intercreditor Agreement to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate and Opinion of Counsel.
Appears in 1 contract
Sources: Indenture (DT Midstream, Inc.)
Release of Collateral. (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to timeLenders hereby irrevocably authorize Agent, and the Security Documents may be terminatedAgent agrees with Borrower that, in each casethe case of clauses (w) and (x) below it shall, release any Lien granted to or held by Agent upon any Collateral (v) owned by a Restricted Subsidiary that is Credit Party (other than Borrower) upon the consummation of any transaction or designation permitted by this Agreement as a result of which such Credit Party ceases to be a Restricted Subsidiary (including pursuant to a permitted merger or amalgamation with a Subsidiary that is not a Credit Party or a designation as an Unrestricted Subsidiary) or becomes an Excluded Subsidiary, (w) upon termination of the Commitments and payment and satisfaction of all Obligations (other than contingent indemnification obligations to the extent no claims give rise thereto have been asserted), (x) constituting property being sold or disposed of if Borrower certifies to Agent that the sale or disposition is made in compliance with the provisions of this Agreement (and Agent may rely in good faith conclusively on any such certificate, without further inquiry), (y) in connection with the exercise of any right or remedy in accordance with the terms of the Loan Documents or (z) in accordance with the provisions of the Security Documents and in accordance next sentence. In addition, with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders Requisite Lenders, Agent may release any Lien granted to or held by Agent upon any Collateral having a book value not greater than ten percent (10%) of the Notestotal book value of all Collateral, either in a single transaction or in a series of related transactions. In releasing (ii) Confirmation of Authority; Execution of Releases. Without in any manner limiting Agent’s authority to act without any specific or further authorization or consent by ▇▇▇▇▇▇▇ (as set forth in Section 8.2(h)(i)), each Lender agrees to confirm in writing, upon request by Agent or Borrower, the authority to release any Collateral pursuant to conferred upon Agent under clauses (v), (w), (x), (y) and (z) of Section 8.2(h)(i). Upon receipt by Agent of any required confirmation from the terms of the Indenture or any Security Documents, the Trustee shall, in the absence Requisite Lenders of its negligence authority to release any particular item or willful misconduct be entitled to receivetypes of Collateral, and Agent shall (and is hereby irrevocably authorized by Lenders to) execute such documents as may be fully protected in relying upon, in addition necessary to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.84 [[6937528]]
Appears in 1 contract
Sources: Credit Agreement (White Mountains Insurance Group LTD)
Release of Collateral. (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company The Issuers and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Notes Obligations under any one or more of the following circumstances:
(1i) to enable Cedar Fair and/or one or more Co-Issuers and/or one or more Guarantors to consummate the Company sale, transfer or any Restricted Subsidiary to sell, exchange other disposition (including by the termination of capital leases or otherwise dispose of any the repossession of the Collateral as permitted under this Indenture and leased property in a capital lease by the Security Documentslessor) of such property or assets (to a Person that is not Cedar Fair or a Subsidiary of Cedar Fair) to the extent consummated in accordance with, or not prohibited by, Section 4.10 hereof;
(2ii) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Indenture (including upon its designation as an Unrestricted Subsidiary), the release of the property and assets of such Guarantor;
(3iii) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 release of Excess Proceeds that remain unexpended after the conclusion of an Excess Proceeds Offer conducted in accordance with this Indenture;
(4iv) pursuant with respect to an amendment Collateral that is Capital Stock, upon the dissolution or waiver in accordance with Article 9 liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture;
(5v) to in connection with any enforcement action taken by the extent required under Applicable Authorized Representative (as defined in the First Lien Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien ) in accordance with the terms of the Security Documents and this Indenture will not be deemed for First Lien Intercreditor Agreement;
(vi) as described under Article 9 hereof; or
(vii) upon the release of such Collateral with respect to Obligations under any purpose to be an impairment First Lien Obligations (other than the Notes Obligations), except release of the such Collateral as a result of payment in full of such First Lien Obligation.
(b) The Liens on the Collateral securing the Notes and the Guarantees also shall be released:
(i) upon payment in contravention full of the terms principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Guarantees and the Collateral Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(ii) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.02 and Section 8.03 hereof, or a discharge of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments Indenture as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral described under Section 8.01 hereof; or
(iii) pursuant to the terms Collateral Documents or the First Lien Intercreditor Agreement.
(c) With respect to any release of the Indenture or any Security DocumentsCollateral, the Trustee shall, in the absence upon receipt of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and an Officer’s Certificate stating that all conditions precedentprecedent under this Indenture, if anythe Collateral Documents and the First Lien Intercreditor Agreement, as applicable, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments met and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens it is permitted for the benefit Trustee and/or Notes Collateral Agent to execute and deliver the documents requested by Cedar Fair in connection with such release and any necessary or proper instruments of the Holders of the Notes and termination, satisfaction or release prepared by Cedar Fair, the Trustee and subject the Notes Collateral Agent shall, execute, deliver or acknowledge (at Cedar Fair’s expense) such instruments or releases to an intercreditor agreement evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Collateral Documents or the First Lien Intercreditor Agreement and shall do or cause to be done (at Cedar Fair’s expense) all acts reasonably requested of them to evidence or acknowledge the release of such Lien as soon as is reasonably practicable. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in substantially reliance upon any such Opinion of Counsel and Officer’s Certificate, and notwithstanding any term hereof or in any Collateral Document or in the same form as First Lien Intercreditor Agreement to the Intercreditor Agreementcontrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Opinion of Counsel and Officer’s Certificate, upon which it shall be entitled to conclusively rely.
Appears in 1 contract
Sources: Indenture (Cedar Fair L P)
Release of Collateral. Except as otherwise provided in this Agreement, without the written consent of: (ai) the Super-Majority Lenders (other than Defaulting Lenders), release any Collateral may (including any Collateral consisting of capital stock or other ownership interests of any Loan Party or its Subsidiaries) that consists of less than all or substantially all of the assets of any Loan Party, or (ii) all the Lenders (other than Defaulting Lenders), release any Collateral (including any Collateral consisting of capital stock or other ownership interests of any Loan Party or its Subsidiaries) that consists of all or substantially all of the assets of any Loan Party; provided that the foregoing consents shall not be released from the Liens created required in connection with any sale, transfer, lease, disposition, merger or other transaction otherwise permitted by this Agreement and any Permitted Gas Properties Disposition or Permitted Coal Properties Disposition, which such consents are given if required solely by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company Administrative Agent pursuant to an Officers’ Certificate Section 10.10 [Authorization to Release Collateral and an Opinion of Counsel certifying Guarantors; Certain Other Actions]; and provided further that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the event that the Borrower provides any applicable Issuing Lender with Cash Collateral from to secure any Letters of Credit with an expiry date beyond the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Expiration Date pursuant to Section 2.9.10 [Cash Collateral Agent to modify, release and adjust the Liens, Prior to the extent provided for herein and in Expiration Date] the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) Issuing Lender is permitted to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the release such Cash Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders any Lender once such Letter of the Notes. In releasing any Collateral pursuant Credit has terminated, expired or has otherwise been returned to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the CollateralIssuing Lender undrawn; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.or
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon Notwithstanding anything to the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included contrary in the Security Documents and this Indenture, Liens on the property and other assets constituting Collateral from the Liens securing the Notes, Notes Obligations will automatically and without the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided need for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, any further action by any Person be released under any one or more of the following circumstances:
(1i) in whole or in part, as required by the Intercreditor Agreement or any Security Document;
(ii) to enable the Company disposition of such property or assets by a Note Party (other than to the Issuer or a Guarantor) to the extent not prohibited under Section 10.17;
(iii) with respect to property or other assets owned by a Guarantor that is released from its Guarantee pursuant to the terms of this Indenture, concurrently upon the release from such Guarantee;
(iv) to the extent any Collateral constitutes or becomes an “Excluded Asset”;
(v) in accordance with the provisions of Section 10.12;
(vi) with respect to any Collateral constituting property leased or licensed to the Issuer or a Guarantor under a lease which has expired or been terminated in a transaction permitted under this Indenture, to release such Collateral; or
(vii) as permitted by Sections 9.01 or 9.02.
(b) The Liens on the Collateral securing the Notes and the Guarantees also will be terminated and released:
(i) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the related Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid; or
(ii) upon a legal defeasance or covenant defeasance pursuant to Section 14.02 or Section 14.03 or a satisfaction and discharge of this Indenture pursuant to Section 4.01.
(c) At the request of the Issuer and delivery of the documents required by the following paragraph, the Notes Collateral Agent will promptly subordinate or release its Lien:
(1) upon the disposition by a Note Party of such property or assets (other than to the Issuer or a Guarantor) to the extent not prohibited under Section 10.17;
(2) as required by the Intercreditor Agreement or any Restricted Subsidiary Security Document;
(3) as required to selleffect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Trustee as further described under Article Five; and
(4) on any property that is or becomes subject to Liens permitted to be incurred pursuant to clause (11) or (13) of the definition of “Permitted Liens.” With respect to any release, exchange termination or otherwise dispose subordination of any Lien or security interest on any Collateral which requires execution of any agreement, document, instrument or certificate by the Notes Collateral Agent or Trustee, as applicable, upon receipt of an Officer’s Certificate stating that such release, termination or subordination is permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, as applicable, the Notes Collateral Agent and/or Trustee, as applicable, shall promptly execute, deliver or acknowledge (at the Issuer’s expense) any necessary or proper instruments, documents, agreements or notices of termination, satisfaction, release or subordination of any such Liens or security interests prepared by the property and assets of Issuer. The Notes Collateral Agent and/or Trustee shall do or cause to be done (at the Issuer’s expense) all acts reasonably requested by any Note Party to release, terminate or subordinate any such Guarantor;
(3) if Liens or security interests as soon as is reasonably practicable. Neither the Trustee nor the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence be liable for any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens termination undertaken in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of upon any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementOfficer’s Certificate.
Appears in 1 contract
Sources: Indenture (Manitowoc Co Inc)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company super-priority Liens on the DIP Collateral and the Guarantors first priority Liens on the Exit Collateral, as applicable, will be entitled automatically released with respect to a release of assets included in the Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable any Specified Collateral Party to consummate the Company sale, transfer or any Restricted Subsidiary to sell, exchange other disposition (including by the termination of capital leases or otherwise dispose of any the repossession of the Collateral as leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Issuer or a Subsidiary of the Issuer) to the extent permitted under this Indenture and by Section 3.5 or in connection with the Security DocumentsStaggered Emergence;
(2) in the case of a Guarantor Specified Collateral Party that is released from its Guarantee pledge of Collateral with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(3) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturean Investment Grade Event;
(4) pursuant to the release of Collateral Excess Proceeds or Excess Proceeds that remain unexpended after the conclusion of an amendment Asset Disposition Offer or waiver a Collateral Asset Disposition Offer conducted in accordance with Article 9 of this Indenture;
(5) as described under Article IX hereof;
(6) if the property subject to such Lien becomes Excluded Asset;
(7) to release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Security Document to the holder of any Lien on such property that is a Permitted Lien under clauses (9) or (12) (in the case of clause (12), upon the reasonable request of the Issuer, to the extent required under by the Intercreditor Agreement. The release terms of the agreements governing such Permitted Lien) of the definition thereof;
(8) if any Specified Collateral Party ceases to be a Restricted Subsidiary, or becomes excluded from the terms hereof and Collateral, in each case as a result of a transaction not prohibited hereunder or designation permitted hereunder; or
(9) solely with respect to any DIP Collateral that does not constitute Exit Collateral, the occurrence of the Conversion Date.
(b) Notwithstanding anything to the contrary in the Security Documents or the release ofand this Indenture, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral securing the Notes and the Notes Guarantees also will be automatically released:
(1) upon payment in contravention full of the provisions hereof if principal of, together with accrued and to unpaid interest on, the extent that Notes and all other Obligations under this Indenture, the Liens on Collateral are released, or Notes Guarantees and the Security Documents that are terminateddue and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.2 and Section 8.3 hereof, or a discharge of this Indenture as described under Section 11.1 hereof;
(3) pursuant to the Security Documents; or
(4) subject to Section 9.2, if the release of such Lien is approved, authorized or ratified in writing by Holders of at least a majority in principal amount of the Notes outstanding at such time.
(c) Notwithstanding anything contained herein to the contrary, upon request by the Collateral Agent at any time, the Holders shall confirm in writing the Collateral Agent’s irrevocable authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document; provided that the absence of such confirmation shall not affect in any way the validity of the automatic releases of security interest or Guarantee contemplated by this Indenture or the Collateral Agent obligations to comply with the provisions of the immediately following sentence. The Collateral Agent shall, at the Issuer’s expense and upon receipt of an Officer’s Certificate and Opinion of Counsel, execute and deliver to the Issuer or the applicable Grantor such documents and such amendments, modifications or supplements to any Security Documents, in each case as the Issuer or such Guarantor may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to evidence the release of such Grantor from its obligations under the Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document.
(d) Notwithstanding Section 12.2(a)(3), if, after any Investment Grade Event, both of the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating, the Issuer and the Grantors shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes valid, perfected, first priority security interests (subject to Permitted Liens) in the Collateral within ninety (90) days after such Reversion Date or as soon as reasonably practicable thereafter.
(e) With respect to any release of Collateral, upon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture and the Security Documents, as applicable, to such release have been met, the Trustee (if applicable) and the Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) any instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose shall do or cause to be an impairment done (at the Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the Lien on Trustee nor the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent instrument of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture release, satisfaction or any Security Documentstermination, the Trustee shallunless and until it receives such Officer’s Certificate, in the absence of its negligence or willful misconduct upon which it shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedconclusively rely.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Release of Collateral. (a) Liens on Collateral may be released from securing the Liens created by the Security Documents at any time or from time to time, Notes and the Security Documents may Guarantees (other than the Intercompany Loans) shall be terminatedautomatically and unconditionally released:
(i) in connection with any sale or other disposition of Collateral if the sale or other disposition does not violate Section 4.12(a) (Asset Sales) and, if the Collateral is stock of a Guarantor, in each caseconnection with any merger, consolidation, amalgamation or other combination in which such Guarantor is not the surviving corporation if the transaction does not violate Section 4.20 (Merger, Consolidation or Sale of Assets);
(ii) if the Collateral is an asset of a Guarantor (or one of its Subsidiaries) that is to be designated as an Unrestricted Subsidiary, upon designation of the Guarantor as an Unrestricted Subsidiary in accordance with the provisions Section 4.25 (Designation of the Security Documents Restricted and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security DocumentsUnrestricted Subsidiaries);
(2iii) in if the case Collateral is an asset of a Guarantor (or one of its Subsidiaries) that is to be released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted , upon release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, Guarantor from its Guarantee;
(iv) in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and accordance with the Security Documents and that all conditions precedentIntercreditor Agreement (as in effect on the Issue Date or as amended, if any, to such release have been satisfied.supplemented or otherwise modified after the Issue Date) upon the occurrence of an enforcement action;
(bv) If all Liens on such property upon legal defeasance or assets securing First-Priority Liens (including all commitments satisfaction and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders discharge of the Notes in accordance with Section 8.2 (Legal Defeasance and Discharge) or Section 8.5 (Satisfaction and Discharge of the Trustee and subject to an intercreditor agreement Indenture);
(vi) if the Collateral is a Specified Bank Account, upon the written request of the Parent, if the Parent certifies in substantially such request that as of the same form last day of the then most recent fiscal quarter ending after the Issue Date, such account did not have at least $5.0 million (or, if in a currency other than U.S. dollars, the U.S. dollar equivalent thereof) in deposits; and
(vii) as the Intercreditor Agreement.described in Article IX (
Appears in 1 contract
Sources: Indenture (Latchey LTD)
Release of Collateral. (a) The parties hereto agree that the Collateral may will be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions Lien of the Security Documents in the event that (i) the Index Debt shall achieve a rating of Baa3 by Mood▇'▇ ▇▇ a rating of BBB- by S&P and in accordance with this Indenture. Upon the request rating of the Company pursuant to an Officers’ Certificate Index Debt by the other is not more than two rating categories below the rating of Baa3 or BBB-, as applicable, and an Opinion (ii) none of Counsel certifying the Indebtedness issued under the Senior Indentures or the Subordinated Securities would be secured by the Collateral after such release. The Borrowers agree that all covenants and conditions precedent hereunder have been complied within the event that the Index Debt is rated Ba1 or lower by Mood▇'▇ ▇▇▇ BB+ or lower by S&P, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of preceding sentence will be repledged, with the Indenture or any Security Documents, same priority as before the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if anyprovided for above, to secure the Obligations. Each Borrower agrees to promptly execute any instruments, releases, financing statements or other agreements necessary or advisable by the Collateral Agent or its counsel to implement such release have been satisfiedrepledge.
(b) If all Liens on such The parties hereto acknowledge that the property and assets subject to the Lien of the Mortgages, the Domestic Security Agreements, the Foreign Security Agreements (except to the extent the Collateral subject to the Lien thereunder is capital stock of, or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are releasedother ownership interests in, then the Company and its Subsidiaries will take all steps required to convert be pledged under this Agreement or the Holders’ second-priority Liens on proceeds thereof) and the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 Supplemental Security Agreements (all of the definition of Permitted Liens, then foregoing capitalized terms being used herein as defined in the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor 1995 Credit Agreement) is released as of the NotesEffective Date and such Mortgages, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Domestic Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.Agreements,
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the The Liens securing the Notes, Notes and the Holders hereby irrevocably authorize Note Guarantees will be automatically and direct the Trustee unconditionally released and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, discharged under any one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary a Guarantor to sellconsummate the sale, exchange transfer or otherwise dispose other disposition (including by the termination of any capital leases or the repossession of the Collateral as permitted leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Company or a Guarantor) to the extent not prohibited under this Indenture and the Security DocumentsSection 4.10;
(2) in upon the case release of a Guarantor that is released from its Note Guarantee with respect pursuant to the Notes, the release of the property and assets of such Guarantorthis Indenture;
(3) if in respect of the Notes have been defeased pursuant property, assets and Capital Stock of a Guarantor, upon designation of such Guarantor to Article 8 or satisfied and discharged pursuant to Article 12 be an Unrestricted Subsidiary in accordance with the terms of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenturethe extent such Collateral otherwise becomes Excluded Assets;
(5) to the extent required as described under the Intercreditor Agreement. The Article 9;
(6) upon any release of any Collateral from the terms hereof and or termination of the Security Documents Lien on any Shared Collateral securing the First Lien Obligations for which the Controlling Collateral Agent acts as Authorized Representative other than (x) pursuant to a repayment or refinancing of such First Lien Obligations or (y) after the release of, occurrence and during the continuance of an event of default with respect to any First Lien Obligations for which the Controlling Collateral Agent does not act as Authorized Representative;
(7) in whole or in part, if the Liens created New Credit Agreement Agent releases or will release its Lien on such Collateral concurrently therewith, unless such release occurs in connection with a discharge in full in cash of the New Credit Agreement Obligations, which discharge is not in connection with a foreclosure of, or other exercise of remedies with respect to, Collateral by the New Credit Agreement Agent;
(8) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Note Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(9) upon a legal defeasance or covenant defeasance under this Indenture as described under Article 8 or upon the satisfaction and discharge of this Indenture as described under Article 11; or
(10) as otherwise provided for in any Intercreditor Agreement. The Holders also irrevocably authorize the Collateral Agent (a) to enter into and sign for and on behalf of the Notes Secured Parties, the Security Documents (including any subordination or intercreditor agreements with respect to Indebtedness and Liens permitted under this Indenture) for the benefit of the Notes Secured Parties and (b) to release or subordinate any Lien on any property granted to or held by the Collateral Agent to the holder of any Lien on such property that is permitted by clause (6) of the definition of “Permitted Liens” to the extent required by the holder of, or pursuant to the terms of any agreement governing, the obligations secured by such Liens.
(b) In each case described in the foregoing paragraph, upon receipt of an Officer’s Certificate and an Opinion of Counsel stating that such action is permitted by this Indenture, the Security Documents and all covenants and conditions precedent to such action have been complied with, the Collateral Agent will, at the Company’s expense, execute and deliver to the Company or the applicable Guarantor such documents as the Company or such Guarantor may reasonably request to evidence the release of such item of Collateral from the Lien granted under the Security Documents or to subordinate its interest in such item, or to evidence the release of such Guarantor from its obligations under the Note Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Documents. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in good faith in reliance upon any such Officer’s Certificate and Opinion of Counsel, and notwithstanding any term hereof or in any Security Document to the termination contrary, the Trustee and the Collateral Agent shall not be under any obligation to execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
(c) The release of any Collateral in accordance with the terms of this Indenture and the Security Documents, will Documents shall not be deemed to impair the Liens security under this Indenture on any remaining Collateral or affect the Collateral in contravention Lien of the provisions hereof if and to the extent that the Liens on Collateral are released, this Indenture or the Security Documents are terminated, on any remaining Collateral pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of Indenture, the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementAgreements.
Appears in 1 contract
Sources: Indenture (DIEBOLD NIXDORF, Inc)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Note Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Note Security Documents Documents, the Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withNote Security Documents, the Company Intercreditor Agreement and this Indenture, the Issuer and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Subsidiary Guarantees under any one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the NotesSubsidiary Guarantee, the release of the property and assets of such Guarantor;
(2) with respect to any Collateral that becomes an Excluded Asset upon it becoming an Excluded Asset;
(3) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturean Investment Grade Event;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indentureclause (d) under Section 4.07 hereof;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of securing Obligations under the provisions hereof if and to Credit Agreement are released by the extent that the Liens on Credit Agreement Collateral are releasedAgent (other than any release by, or as a result of, payment of such obligations), upon the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of such Liens;
(6) in part, as to any property that is Collateral or a Lien that is shared with the other Priority Obligations (“Shared Collateral”) in accordance with the terms Intercreditor Agreement and that is released (i) in connection with the foreclosure upon, or other exercise of remedies with respect to, such Shared Collateral by the Controlling Collateral Agent or (ii) in connection with any sale of such Shared Collateral under the Bankruptcy Code, in each case, as provided in the Intercreditor Agreement; or
(7) as described in Article 9 hereof.
(b) The security interests in all Collateral securing the Notes and the Subsidiary Guarantees will also be released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Subsidiary Guarantees and the Note Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon the exercise of the Legal Defeasance option or Covenant Defeasance option, in each case in compliance with the provisions of Article 8 or the satisfaction or discharge of this Indenture in compliance with the provisions of Article 12; or
(3) pursuant to the Intercreditor Agreement and the Note Security Documents.
(c) Except as provided under Section 4.07 or Section 11.07, following the occurrence of a Release Event, the Notes will not be deemed for secured by any purpose assets or property.
(d) With respect to be an impairment any release of the Lien on the Collateral in contravention Collateral, upon receipt of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and Indenture, the Note Security Documents and that all conditions precedentthe Intercreditor Agreement, if anyas applicable, to such release have been satisfied.
(b) If all Liens on such property met and that it is permitted for the Trustee or assets securing First-Priority Liens (including all commitments Notes Collateral Agent to execute and letters of credit thereunder) are released, then deliver the Company documents requested and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided prepared by the Security Documents Issuer in connection with such release and on the terms and conditions any necessary or proper instruments of the security documents relating to such first-priority Lienstermination, with the second-priority Lien held either satisfaction or release prepared by the administrative agentIssuer, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject the Notes Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to an intercreditor agreement in substantially evidence the same form as release of any Collateral permitted to be released pursuant to this Indenture, the Note Security Documents or the Intercreditor Agreement. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Note Security Document or in the Intercreditor Agreement to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate and Opinion of Counsel.
Appears in 1 contract
Sources: Indenture (DT Midstream, Inc.)
Release of Collateral. (a) Collateral may Except as otherwise provided in subsections (b) and (c) of this Section 2.09 and the terms of the Operative Agreements, the Indenture Trustee shall release property from the lien of this Indenture only upon receipt by it of an Issuer Request accompanied by (i) an Officer's Certificate, (ii) an Opinion of Counsel, (iii) certificates in accordance with TIA Sections 314(c) and (d)(1), and (iv)(A) Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or (B) an Opinion of Counsel in lieu of such Independent Certificates to the effect that the TIA does not require any such Independent Certificates (which, so long as any Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default has occurred and is continuing, shall also be addressed to the Insurer); provided that no such Independent Certificates or Opinion of Counsel in lieu of such Independent Certificates shall be necessary in respect of property released from the Liens created by lien of the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, Indenture in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each such property consists solely of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedcash.
(b) If The Master Servicer or any Servicer, on behalf of the Issuer, shall be entitled to obtain a release from the lien of this Indenture for any Mortgage Loan and the Mortgaged Property at any time (i) after a payment by the Seller or a Servicer of the Purchase Price of the Mortgage Loan, (ii) after a Qualifying Substitute Mortgage Loan is substituted for such Mortgage Loan and payment of the Substitution Amount, if any, (iii) after liquidation of the Mortgage Loan in accordance with the applicable Servicing Agreement and the deposit of all Liens on Liquidation Proceeds and Insurance Proceeds in the Collection Account, (iv) upon the termination of a Mortgage Loan (due to, among other causes, a prepayment in full of the Mortgage Loan and sale or other disposition of the related Mortgaged Property), or (v) as contemplated by Section 8.02 of the Transfer and Servicing Agreement.
(c) The Indenture Trustee shall, if requested by the Master Servicer or any Servicer, temporarily release or cause the applicable Custodian temporarily to release to such property or assets securing First-Priority Liens (including all commitments party the Mortgage File pursuant to the provisions of Section 4.15 of the Transfer and letters Servicing Agreement and Section 5 of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateralapplicable Custodial Agreement; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of Mortgage File shall have been stamped to signify the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect Issuer's pledge to the Collateral in favor of Indenture Trustee under the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementIndenture.
Appears in 1 contract
Sources: Indenture (Greenpoint Mortgage Funding Trust 2005-He3)
Release of Collateral. (a) Subject to Section 11.03(b), Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the ABL-Notes Intercreditor Agreement, the Pari Passu Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withcontrary in any Notes Document, the Company and the Guarantors will be entitled to a release of assets included in the Liens on Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, Notes shall automatically (without further action) be released with respect to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, relevant Collateral under one or more any of the following circumstances:
(1A) to enable the Company sale or any Restricted Subsidiary other disposition of such property or assets, including Capital Stock (other than to sellthe Issuer or a Guarantor), exchange or otherwise dispose of any of to the Collateral as extent permitted under Section 4.10, or to the extent arising from the sale or other disposition of property or assets that does not constitute an Asset Sale in a transaction not prohibited by this Indenture and the Security DocumentsIndenture;
(2B) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes in accordance with Section 10.06, the release of the property and assets of such GuarantorGuarantor being released;
(3C) with respect to Collateral that is Capital Stock, upon the dissolution or liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture;
(D) with respect to any Collateral that becomes an “Excluded Asset”;
(E) pursuant to an amendment, supplement or waiver in accordance with Article 9; or
(F) if the Notes have been discharged or defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;12.
(4b) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to The second-priority Lien on the extent required under ABL Collateral securing the Intercreditor Agreement. The release of any Collateral from Notes and the terms hereof Guarantees shall terminate and of be released automatically if the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the first-priority Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on ABL Collateral are releasedreleased by the ABL Collateral Agent (unless, or at the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each time of the Holders acknowledge that a such release of Collateral or a Lien in accordance with the terms such first-priority Liens, an Event of the Security Documents Default shall have occurred and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of continuing under this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant ), subject to the terms of the Indenture ABL-Notes Intercreditor Agreement, other than (i) in connection with any such release by the ABL Collateral Agent in connection with the Discharge of the ABL Obligations or (ii) to the extent prohibited under this Indenture. Notwithstanding the existence of an Event of Default, the second-priority Lien on the ABL Collateral securing the Notes and the Guarantees shall also terminate and be released automatically to the extent the first-priority Liens on the ABL Collateral are released by the ABL Collateral Agent in connection with a sale, transfer or disposition of ABL Collateral that occurs in connection with the foreclosure of, or other exercise of remedies with respect to, ABL Collateral by the ABL Collateral Agent (except with respect to any proceeds of such sale, transfer or disposition that remain after satisfaction in full of the ABL Obligations).
(c) With respect to any release of Collateral permitted by this Section 11.03, upon receipt of a written request from the Issuer and supported by an Officers’ Certificate and, if requested, an Opinion of Counsel each stating that all conditions precedent under this Indenture, the Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture ABL-Notes Intercreditor Agreement and the Security Documents and that all conditions precedentPari Passu Intercreditor Agreement, if any, to such release have been satisfied.
(b) If all Liens on met and that it is proper for the Trustee or Notes Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such property release, and any necessary or assets securing First-Priority Liens (including all commitments and letters proper instruments of credit thereunder) are releasedtermination, then satisfaction or release prepared by the Company and its Subsidiaries will take all steps required Issuer, subject to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 terms of the definition of Permitted LiensPari Passu Intercreditor Agreement, then the Company and its Subsidiaries will be required Trustee shall, or shall cause the Notes Collateral Agent to, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to reinstitute evidence the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority LiensCollateral permitted to be released pursuant to this Indenture, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents or the ABL-Notes Intercreditor Agreement and on the terms and conditions of Pari Passu Intercreditor Agreement. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate and, if requested, Opinion of Counsel.
Appears in 1 contract
Sources: Indenture (BMC Stock Holdings, Inc.)
Release of Collateral. In addition to and subject to the terms of the Intercreditor Agreement, the Collateral Agent’s Liens upon the Collateral will no longer secure the Notes outstanding or any Note Guarantees under this Indenture, and the right of the Holders to the benefits and proceeds of the Collateral Agent’s Liens on the Collateral will terminate and be discharged: 100
(a) Collateral may be released from in whole, upon payment in full of the Liens created by principal of, together with accrued and unpaid interest and premium, if any, on, the Security Documents at any time Notes; (b) in whole, upon satisfaction and discharge of this Indenture or from time upon a legal or covenant defeasance pursuant to time, and the Security Documents may be terminatedArticle VIII hereof; (c) in whole, in each caserespect of the Collateral of a Guarantor, upon the designation of such Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.6 and the provisions definition of “Unrestricted Subsidiary”; (d) in part, as to any property constituting Collateral that is sold, transferred or otherwise disposed of by the Company or any of the Security Guarantors (other than to the Company or another Guarantor) in a transaction permitted by Section 4.13 and by the Collateral Documents and (to the extent of the interest sold or disposed of), or otherwise in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company Collateral Documents and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost ; and expense, under one or more of the following circumstances:
(1e) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, with the Liens created by the Security Documents, or the termination consent of holders of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention requisite percentage of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien notes in accordance with the terms of the Security Documents Sections 9.2 and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture9.3. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, whichprovided that, in the case of any such subsequent first-priority Liensrelease in whole pursuant to clauses (a) and (b) above, will be second-priority Liens on the Collateral securing such first-priority Liens all amounts owing to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as Collateral Agent under this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor AgreementAgreement have been paid or otherwise provided for to the reasonable satisfaction of the Trustee and the Collateral Agent.
Appears in 1 contract
Sources: Indenture (Allegiant Travel CO)
Release of Collateral. (a) Collateral may be released Subject to Section 11.01 and the terms of the Basic Documents, the ------------- Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the Liens created by lien of this Indenture, or convey the Security Documents at any time or from time to time, and Indenture Trustee's interest in the Security Documents may be terminatedsame, in each case, in accordance a manner and under circumstances that are not inconsistent with the provisions of the Security Documents and in accordance with this Indenture. Upon No party relying upon an instrument executed by the request Indenture Trustee as provided in this Article VIII shall be bound to ascertain the Indenture ------------ Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys. The Indenture Trustee shall surrender the Guaranty Policy to the Securities Insurer upon the conditions in Section ------- 4.01 hereof. -----------
(b) The Indenture Trustee shall, at such time as there are no Notes Outstanding and all sums due to the Certificateholders pursuant to Section 5.02(b) of the Company Sale and Servicing Agreement, to the Servicer pursuant to Section ------- 5.01(c)(i)(2) of the Sale and Servicing Agreement, to the Master Servicer ------------- pursuant to Section 5.01(c)(i)(3) of the Sale and Servicing Agreement, to the --------------------- Securities Insurer pursuant to Section 5.01(c)(i)(4) of the Sale and Servicing --------------------- Agreement and to the Indenture Trustee pursuant to Section 5.01(c)(i)(1) of the --------------------- Sale and Servicing Agreement have been paid, release any remaining portion of the Collateral that secured the Notes from the lien of this Indenture and release to the Issuer or any other Person entitled thereto any funds then on deposit in the Trust Accounts. The Indenture Trustee shall release property from the lien of this Indenture pursuant to this Subsection (b) only upon receipt by -------------- it and the Securities Insurer of an Officers’ Certificate and Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, (if required by the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1TIA) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver Independent Certificates in accordance with Article 9 of this Indenture;
(5TIA Sections 314(c) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or 314(d)(1) meeting the applicable Security Documentsrequirements of Section 11.01 hereof. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.-------------
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the First Lien Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withSecurity Documents, the Company First Lien Intercreditor Agreement and this Indenture, the Issuers and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable the Issuers and/or one or more Guarantors to consummate the sale, transfer or other disposition (including by the termination of capital leases or the repossession of the leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Company or any Restricted a Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as Company) to the extent permitted under this Indenture and the Security Documentsby Section 3.5;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(3) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturean Investment Grade Event;
(4) pursuant to the release of Collateral Excess Proceeds or Excess Proceeds that remain unexpended after the conclusion of an amendment Asset Disposition Offer or waiver a Collateral Asset Disposition Offer conducted in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from that becomes Excluded Property;
(6) the terms hereof release of real property (including any mortgages with respect thereto) or Vehicles to the extent the Liens thereon securing the Senior Secured Credit Facility Obligations and all other First Lien Obligations are released pursuant to any applicable amendments thereto;
(7) as described under Article IX hereof; or
(8) the release or subordination of the Security Documents Liens securing the Notes and the First Lien Notes Obligations described in clauses (9), (18), (23), (24) or (40) of the release ofdefinition of “Permitted Liens.” For the avoidance of doubt, in whole to the extent that any Collateral is Disposed of as expressly permitted by the Credit Agreement to any Person other than any of the Issuers or in partany Guarantor, such Collateral shall be sold free and clear of the Liens created by the Security Documents, which Liens shall be automatically released upon the consummation of such Disposition.
(b) The Liens on the Collateral securing the Notes and the Guarantees (other than the Indirect Parent Guarantee) also will be released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Guarantees (other than the Indirect Parent Guarantee) and the Security Documents that are due and payable at or prior to the termination time such principal, together with accrued and unpaid interest, are paid,
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture pursuant to Section 8.2 and Section 8.3 hereof, or a discharge of this Indenture pursuant to Section 12.1 hereof, or
(3) pursuant to the Security Documents (including, without limitation, upon any release of any Liens (in whole or in part) pursuant to Section 9.15 of the Security DocumentsAgreement) or the First Lien Intercreditor Agreement (including, without limitation, upon any release of any Liens (in whole or in part) by the Controlling Collateral Agent pursuant to Section 2.04 of the First Lien Intercreditor Agreement).
(c) Notwithstanding Section 11.2(a)(3) hereof, if, after any Investment Grade Event, the Notes cease to have such Investment Grade Status, the Issuers and the Guarantors (other than the Indirect Parent) shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Notes Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes valid, perfected, first priority security interests (subject to Permitted Liens) in the Collateral on the Reversion Date (or, solely in respect of mortgages and Vehicles, 90 days thereafter) or as soon as reasonably practicable thereafter.
(d) With respect to any release of Collateral, upon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture, the Security Documents and the First Lien Intercreditor Agreement, as applicable, to such release have been met and that it is permitted for the Trustee and/or Notes Collateral Agent to execute and deliver the documents requested by the Issuers in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuers, the Trustee and the Notes Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents or the First Lien Intercreditor Agreement and shall do or cause to be done (at the Issuers’ expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document or in the First Lien Intercreditor Agreement to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate, upon which it shall be entitled to conclusively rely.
(e) Any release of Collateral in accordance with any other provisions of this Indenture and the Security Documents will not be deemed to impair the Liens security under the Indenture, and any engineer, appraiser or other expert may rely on the Collateral such provision in contravention delivering a certificate requesting release so long as all other provisions of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, respect to such release have been satisfiedcomplied with.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Avis Budget Group, Inc.)
Release of Collateral. (ai) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company The Borrower and the Guarantors will be entitled are hereby authorized by the Administrative Agent and the Lenders to a release any Liens granted by any of assets included the Loan Parties on any Collateral that is Disposed of in compliance with Section 9.06, Section 9.08 or Section 9.11; provided that the Lien in favor of the Administrative Agent continues in the Collateral from the Liens securing the Notesproceeds of such Disposition of such Collateral, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, or to the extent provided for herein such Collateral is Disposed of to the Borrower or any Guarantor, such Lien continues in such Collateral.
(ii) Upon (A) a sale, transfer or other Disposition permitted under this Agreement (whether in a single transaction or a series of related transactions and in whether by merger, consolidation or otherwise) of all the Intercreditor Agreement, including, without limitationEquity Interests or Property of any Subsidiary (each such Subsidiary a “Transferred Subsidiary”) to any Person that is not, at the Company’s sole cost and expensetime of such sale, under one transfer or more other Disposition, the Borrower or a Subsidiary of the following circumstances:
Borrower or (1B) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose dissolution of any of the Collateral Subsidiary as permitted under this Indenture Agreement (each such Subsidiary, a “Dissolved Subsidiary”), then such Transferred Subsidiary or Dissolved Subsidiary, as the case may be, shall, upon the consummation of such sale, transfer, other Disposition or dissolution, be automatically released without further action from its obligations under the Guaranty and Collateral Agreement and its obligations to pledge and grant any Collateral owned by it pursuant to any Security Instrument, and no Secured Party have any claim against such Transferred Subsidiary or Dissolved Subsidiary, as the Security Documents;
(2) case may be, under any Loan Document, and, in the case of a Guarantor that is sale of all of the Equity Interests of the Transferred Subsidiary, the pledge of such Equity Interests to the Administrative Agent pursuant to the Security Instruments shall be automatically released without further action.
(iii) Upon a Significant Domestic Subsidiary no longer being a Significant Domestic Subsidiary, then such Subsidiary shall (upon the consummation of such change from being a Significant Domestic Subsidiary, notice to the Administrative Agent of such change from being a Significant Domestic Subsidiary and request of the Administrative Agent to release the Significant Domestic Subsidiary) be released by the Administrative Agent from its Guarantee obligations under the Guaranty and Collateral Agreement and its obligations to pledge and grant any Collateral owned by it pursuant to any Security Instrument, and no Secured Party shall have any claim against such Subsidiary under such Security Instruments. For the avoidance of doubt and subject to Sections 8.06(c)(i), (ii), (iv) and (v), should such Subsidiary become a Significant Domestic Subsidiary again at any time, such Subsidiary shall at such time comply with the provisions of Section 8.06(a)(ii).
(iv) All Collateral shall be automatically released without further action from the Liens of the Administrative Agent and the Secured Parties upon Parent’s receipt of an Investment Grade Rating with respect to the Notes, the release of the property and assets of such Guarantor;its Index Indebtedness.
(3v) if the Notes have been defeased pursuant to Article 8 or satisfied The Administrative Agent shall execute and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) deliver to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof Borrower all documents and of the Security Documents or the release of, in whole or in part, the Liens created instruments reasonably requested by the Security DocumentsBorrower to further evidence any release, or the discharge and termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each Section 8.06(c) of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents liens, security interests and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral other rights in favor of the Notes, which, Administrative Agent in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens and to the same extent provided by the Security Documents and on the terms and conditions assets of the security documents relating to such first-priority Liens, with Loan Parties under the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementLoan Documents.
Appears in 1 contract
Sources: Credit Agreement (Exterran Corp)
Release of Collateral. (a) Collateral may be released from Subject to the Liens created by the Security Documents at any time or from time to time, Pari Passu Intercreditor Agreement and the Security Documents may Junior Lien Intercreditor Agreement, Liens on Collateral securing the Notes shall be terminated, in each case, in accordance with the provisions automatically and unconditionally released:
(1) as to any property or asset (including Capital Stock of a Subsidiary of the Security Documents Issuer), to enable the Issuer and the Guarantors to consummate the disposition of such property or asset to the extent not prohibited by clause (7) below or under Section 4.9 or Section 4.8;
(2) to release Excess Proceeds and Collateral Excess Proceeds to the Issuer that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in accordance with this Indenture. Upon the request Indenture and not required to be made a part of the Company pursuant Collateral;
(3) in respect of the property and assets of a Guarantor, upon the designation of such Guarantor to be an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in Unrestricted Subsidiary under Section 4.8;
(4) the Collateral is released from the Liens securing the Term Loan Credit Facility (whether as a result of repayment or otherwise) and is not otherwise securing or shall not be securing Indebtedness outstanding under any refinancing or replacement thereof or any other Pari Passu Lien Obligations (other than Obligations under the Notes and any Additional Notes, );
(5) as described in Section 9.6;
(6) in respect of the property and assets of a Guarantor upon release or discharge of the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, Note Guarantee of such Guarantor in compliance with this Indenture; and
(7) as to the extent provided for herein pledge of Capital Stock of First-Tier Foreign Subsidiaries, in connection with a reorganization, change or modification of the direct or indirect ownership of Foreign Subsidiaries by the Issuer or a Guarantor, as applicable, in compliance with this Indenture, a release may be obtained as to such Capital Stock in connection with the substitution of pledge of 65% of the voting Capital Stock and in 100% of the non-voting Capital Stock of any one or more new or replacement First-Tier Foreign Subsidiaries pursuant to valid Security Documents. In addition, the Liens granted pursuant to the Security Documents securing the Notes Obligations shall, subject to the Pari Passu Intercreditor Agreement, includingautomatically terminate and/or be released all without delivery of any instrument or performance of any act by any party, without limitationand all rights to the Collateral shall revert to the applicable Grantors (as defined in the Collateral Agreement), at the Company’s sole cost and expense, under one or more as of the following circumstances:
date upon (i) all the Notes Obligations (other than contingent or unliquidated obligations or liabilities not then due) having been paid in full in cash or immediately available funds; (ii) a legal defeasance or covenant defeasance or discharge under Article 8; or (iii) the Holders of at least 66% in aggregate principal amount of all Notes issued under this Indenture consent to the termination of the Security Documents. Subject to the Intercreditor Agreements, the security interests in all Collateral securing the Notes also shall be released upon (1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any payment in full of the Collateral as permitted principal of, together with accrued and unpaid interest and Additional Interest, if any, on, the Notes and all other Notes Obligations under this Indenture and the Security Documents;
Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest (including Additional Interest, if any), are paid (including pursuant to a satisfaction and discharge of this Indenture as described under Section 8.5) or (2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 legal defeasance or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required covenant defeasance under the Intercreditor Agreement. The release of any Collateral from the terms hereof Indenture as described under Section 8.2 and of the Security Documents or the release of8.3, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedrespectively.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (FTS International, Inc.)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and time with respect to the Security Documents may be terminated, in each case, Secured Notes in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company Issuers and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Secured Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable any Issuer or Guarantor to consummate the Company sale, transfer or any Restricted Subsidiary other disposition of such property or assets to sell, exchange the extent not prohibited under Section 4.10 hereof or not otherwise dispose of any of the Collateral as permitted prohibited under this Indenture and the Security DocumentsIndenture;
(2) in the case of a Guarantor that is released from its Note Guarantee with respect to the Notes, Secured Notes pursuant to the release terms of this Indenture with respect to the property and other assets of such Guarantor, upon the release of such Guarantor from such Note Guarantee;
(3) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this IndentureIndenture or (ii) [reserved];
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture[reserved];
(5) [reserved];
(6) [reserved];
(7) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral securing all Senior Credit Facility Obligations are released by the Priority Lien Agent and the Second Lien Bank Collateral Agent, as applicable, in contravention compliance with the terms of the provisions hereof if and to the extent that the Liens on Collateral are releasedSenior Credit Facilities (other than any release by, or the Security Documents are terminatedas a result of, pursuant to this Indenture or the applicable Security Documents. The Trustee and each payment of the Holders acknowledge that a Senior Credit Facility Obligations), upon the release of Collateral or a such Liens;
(8) in connection with any enforcement action taken by the Priority Lien Agent in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of First/Second/Third Lien Intercreditor Agreement or by the Second Lien on the Collateral in contravention of the terms of this Indenture. The Controlling Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to in accordance with the terms of the Second Lien Pari Passu Intercreditor Agreement; or
(9) pursuant to Article 9 hereof (including, without limitation, pursuant to Section 9.03).
(b) The Liens on the Collateral securing the Secured Notes and the related Note Guarantees also will be terminated and released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Secured Notes and all other Obligations under this Indenture, the related Note Guarantees and the Security Documents with respect to the Secured Notes that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture pursuant to Sections 8.02 and 8.03, respectively, or a satisfaction and discharge of this Indenture pursuant to Section 11.01; or
(3) pursuant to the Intercreditor Agreements and the Security Documents with respect to the Secured Notes.
(c) Any Lien on any Collateral may be released or subordinated to the holder of any Lien on such Collateral securing any Financing Lease Obligations or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition Lien on such Collateral that is permitted by clause (12) (but solely to the documents extent Liens under such clause secure Indebtedness permitted to be incurred pursuant to clauses (4) and (24) of Section 4.09(b)),(16) or (26) of the definition of “Permitted Liens” to the extent required by Section 13.04the terms of the Obligations secured by such Liens.
(d) With respect to any release of Collateral, upon receipt of an Officers’ Officer’s Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentDocuments, if anyas applicable, to such release have been satisfied.
met and that it is permitted for the Trustee or Notes Collateral Agent to execute and deliver the documents requested by the Issuers in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuers, the Trustee and the Notes Collateral Agent shall, execute, deliver or acknowledge (bat the Issuers’ expense) If all Liens on such property instruments or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then releases to evidence the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority LiensCollateral permitted to be released pursuant to this Indenture, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on or the terms and conditions of Intercreditor Agreements. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
Appears in 1 contract
Sources: Intercreditor Agreement (Sinclair Broadcast Group Inc)
Release of Collateral. (a) The Liens on the Collateral may be released from securing the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors Notes will be entitled automatically released with respect to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sellin whole, exchange or otherwise dispose of any upon payment in full of the Collateral as permitted under this Indenture principal of, accrued and unpaid interest and premium, if any, and all other obligations on the Security DocumentsNotes due and payable at such time;
(2) in whole, upon satisfaction and discharge of this Indenture in accordance with the case of a Guarantor that is released from its Guarantee terms hereof with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if in whole, upon a Legal Defeasance or Covenant Defeasance with respect to the Notes have been defeased pursuant to Article 8 VIII;
(4) as to any property or satisfied and discharged pursuant asset constituting Collateral that is sold or otherwise disposed of by any of the Grantors, (other than to another Grantor) in a transaction not prohibited by this Indenture at the time of such sale or disposition;
(5) in whole or in part, with the consent of the Holders of the requisite percentage of Notes in accordance Article 12 IX;
(6) in whole, with respect to the Collateral owned by any Guarantor, upon the release of the Guarantee of such Guarantor in accordance with the terms of this Indenture;
(47) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, with respect to any property or asset of any Grantor that is or becomes an Excluded Property under the Liens created by the Security Documents, or the termination terms of the Security Collateral Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and .
(8) to the extent that provided in the Liens on applicable provisions of the Collateral are released, Documents or the Security Documents are terminatedIntercreditor Agreement;
(9) in whole or in part, pursuant with respect to this Indenture any property or asset of any Grantor that is released from the applicable Security Documents. The Trustee and each of Collateral securing the Holders acknowledge that a release of Collateral or a First Lien Obligations in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment First Lien Documents; and
(10) in whole, upon the occurrence of the Lien on first date when (i) the Company’s Credit Rating is Investment Grade, or (ii) S&P and ▇▇▇▇▇’▇ have each confirmed in writing that the Company’s Credit Rating will be Investment Grade after giving effect to the release of the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to accordance with the terms of the Indenture or any Security Collateral Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Release of Collateral. (a) The Liens on the Collateral may be released from the Liens created by under the Security Documents at any time or from time securing the Obligations under the Notes and the Note Guarantees, as applicable, will be released, subject to timethis Section 11.02:
(i) in whole, upon payment in full of the principal of, accrued and unpaid interest, and premium, if any, on the Security Documents may be terminatedNotes;
(ii) in whole, upon satisfaction and discharge of this Indenture in each caseaccordance with Article XII;
(iii) in whole, upon a legal defeasance or a covenant defeasance as set forth under Article 8;
(iv) as to any asset constituting Collateral (A) that is sold or otherwise disposed of by any Grantor (to a person that is not a Grantor) in a transaction permitted by Section 4.10 (to the extent of the interest sold or disposed of and other than any sale or disposition among the Company and any Guarantor) or otherwise permitted by this Indenture, if all other Liens on that asset securing the Credit Facility Obligations and any Other Pari Passu Secured Indebtedness then secured by that asset (including all commitments thereunder) are released; or (B) that is otherwise released in accordance with, and as expressly provided for in accordance with the provisions Intercreditor Agreements (it being understood that the Liens on the Collateral with respect to the Notes and the Note Guarantees will be released to the extent the corresponding First Priority Liens securing all First Priority Obligations are released);
(v) as set forth under Section 9.02, as to property that constitutes less than all or substantially all of the Security Documents Collateral, with the consent of Holders of at least a majority in aggregate principal amount of the Notes then outstanding, voting as one class (or, in the case of a release of all or substantially all of the Collateral, with the consent of the Holders of at least sixty-six and two-thirds percent (662/3%) in aggregate principal amount of the Notes then outstanding, voting as one class), including consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes;
(vi) with respect to assets of a Guarantor upon release of such Guarantor from its Note Guarantee as set forth under Article 10; and
(vii) in whole or in part in accordance with the Intercreditor Agreements. Upon compliance by the Company or any Guarantor, as the case may be, with the conditions precedent required by this Indenture. Upon , the request of Trustee or the Collateral Trustee shall promptly cause to be released and reconveyed to the Company pursuant or the Guarantor, as the case may be, the released Collateral. Prior to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied witheach proposed release, the Company and the Guarantors each Guarantor will be entitled furnish to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under Trustee all documents required by this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes. In executing or authorizing any release, the release Trustee and/or Collateral Trustee may conclusively rely upon an Officer’s Certificate and Opinion of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required Counsel stating that all conditions precedent under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release ofIndenture, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release Intercreditor Agreements have been satisfiedcomplied with.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Ocwen Financial Corp)
Release of Collateral. (a) The Liens on the Collateral may will be released from with respect to the Liens created by the Security Documents at any time or from time to time, Notes and the Security Documents may be terminatedNote Guarantees, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstancesas applicable:
(1) to enable the Company or any Restricted Subsidiary to sellin whole, exchange or otherwise dispose of any upon payment in full of the Collateral as permitted under this Indenture principal of, accrued and unpaid interest, if any, and premium, if any, on the Security DocumentsNotes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Article 12;
(3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(4) in part, as to any property constituting Collateral (A) that is sold, transferred or otherwise disposed of by the case Company or any of the Guarantors (other than to the Company or another Guarantor) in a transaction that does not constitute an Asset Disposition or is made in compliance with the provisions of this Indenture, including Section 4.10, and the Collateral Documents (to the extent of the interest sold or disposed of); or (B) otherwise in accordance with, and as expressly provided for under, this Indenture, the Collateral Documents, the Collateral Cooperation Agreement or the Intercreditor Agreements;
(5) in whole as to all Collateral that is owned by a Guarantor that is released from its Note Guarantee in accordance with respect to the Notes, the release of the property and assets of such GuarantorSection 10.6;
(36) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms at least 66⅔% in aggregate principal amount of the Indenture Notes (including, without limitation, consents obtained in connection with a purchase of, or any Security Documentstender offer or exchange offer for, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.Notes); and
(b7) If in whole as to all Liens on such property Collateral that is sold, transferred or assets securing First-Priority Liens (including all commitments and letters otherwise disposed of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collaterala Minntac Mining Subsidiary; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, whichthat, in the case of any such subsequent first-priority Liensrelease in whole pursuant to clauses (1) through (3) above, will be second-priority Liens on all amounts owing to the Trustee and the Collateral securing such first-priority Liens Agent under this Indenture, the Notes, the Note Guarantees, the Collateral Documents, the Collateral Cooperation Agreement and the Intercreditor Agreements have been paid or otherwise provided for to the same extent provided by the Security Documents and on the terms and conditions reasonable satisfaction of the security documents relating to such first-priority LiensTrustee and Collateral Agent; provided, with further, that in the second-priority Lien held either by the administrative agentcase of clause (7) above, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated written notice shall be provided by the Company to hold the second-priority Liens for Collateral Agent upon such disposition to a Minntac Mining Subsidiary.
(b) To the benefit of extent required by this Indenture, the Holders of Company or the Notes and Guarantors, as the case may be, will furnish to the Trustee and subject Collateral Agent, prior to each proposed release of such Collateral pursuant to the Collateral Documents and this Indenture an intercreditor agreement Officers’ Certificate as required by this Indenture; provided, however, in substantially no event shall this Indenture require an Officers’ Certificate for (i) the same form release of a Lien on Collateral pursuant to Section 11.06(a)(7) above or (ii) the release of a Lien on Collateral that is sold in the ordinary course of business to the extent such sale does not constitute an Asset Disposition or is made in compliance with the provisions of this Indenture.
(c) Upon compliance by the Company or the Guarantors, as the Intercreditor Agreementcase may be, with the conditions precedent set forth above, the Trustee or the Collateral Agent shall promptly cause to be released and reconveyed to the Company or the Guarantors, as the case may be, the released Collateral and, if necessary, the Collateral Agent shall, at the Company’s expense, cause to be filed such documents or instruments (that are prepared by the Company and provided to the Collateral Agent) as shall be necessary to provide for the release by the Collateral Agent of the released Collateral.
Appears in 1 contract
Sources: Indenture (United States Steel Corp)
Release of Collateral. (a) Subject to Section 10.03(b), Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withDocuments, the Company Intercreditor Agreement and this Agreement. Notwithstanding anything to the Guarantors will be entitled to a release of assets included contrary in the Collateral from any Security Document, the Liens on Collateral securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, Notes shall be immediately released with respect to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, relevant Collateral under any one or more of the following circumstances:
(1i) to enable the disposition of such property or assets, including Capital Stock (other than to the Company or any Restricted Subsidiary a Guarantor) to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documentsextent not prohibited by Section 4.06;
(2ii) in the case of a Guarantor that is released from its Guarantee with respect to the NotesGuarantee, the release of the property and assets of such Guarantor;
(3iii) if with respect to Collateral that is Capital Stock, upon the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this IndentureAgreement or upon the release of a Guarantor that has pledged such Capital Stock;
(4iv) pursuant to an amendment amendment, supplement or waiver in accordance with Article 9 of this Indenture;8; or
(5v) to upon the extent required payment in full of the principal of, and together with accrued and unpaid interest on, the Notes and all other obligations under this Agreement, the Intercreditor Agreement. The release of any Collateral from the terms hereof Guarantees and of the Security Documents or the release ofthat are then due and payable (other than contingent indemnification obligations that, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of this Agreement and the Indenture or any Security Documents, survive the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedtermination thereof).
(b) If all The second-priority Lien on the ABL Priority Collateral securing the Notes and the Guarantees will terminate and be released automatically if the first-priority Liens on the ABL Priority Collateral are released by the Bank Collateral Agent (unless, at the time of such property release of such first-priority Liens, an Event of Default shall have occurred and be continuing), other than (i) in connection with a Discharge of ABL Obligations under the Credit Agreement or assets securing First-Priority Liens (including all commitments and letters ii) to the extent prohibited under this Agreement. Notwithstanding the existence of credit thereunder) are releasedan Event of Default, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the ABL Priority Collateral into securing the Notes and the Guarantees shall also terminate and be released automatically to the extent the first-priority Liens on the Collateral; providedABL Priority Collateral are released by the Bank Collateral Agent in connection with a sale, howevertransfer or disposition of ABL Priority Collateral that occurs in connection with the foreclosure of, that if or other exercise of remedies with respect to, ABL Priority Collateral by the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement Bank Collateral Agent (except with respect to the Collateral any proceeds of such sale, transfer or disposition that remain after satisfaction in favor full of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementLenders Debt).
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company The Issuer and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Note Guarantees under any one or more of the following circumstances:
(1) to enable the Company Issuer or any Restricted Subsidiary Guarantor to sellconsummate the sale, exchange transfer or otherwise dispose other disposition (including by the termination of any Capitalized Lease Obligations or the repossession of the leased property subject to Capitalized Lease Obligations by the lessor and by means of a Restricted Payment) of such Collateral as permitted to any Person other than the Issuer or a Guarantor, to the extent such sale, transfer or other disposition is not prohibited by the covenant described under this Indenture and the Security DocumentsSection 10.17;
(2) in the case of a Guarantor that is released from its Guarantee Note Guarantee, with respect to the Notes, the release of the property and other assets of such Guarantor, upon the release of such Guarantor from its Note Guarantee;
(3) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture or (ii) upon the designation by the Issuer of such issuer of Capital Stock as an Unrestricted Subsidiary under this Indenture;
(4) pursuant with respect to any Collateral that becomes an amendment or waiver in accordance with Article 9 of this Indenture“Excluded Asset,” upon it becoming an Excluded Asset;
(5) in accordance with Section 10.12(a)(2);
(6) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention securing the Senior Credit Facility Obligations are released by the Senior Credit Facilities Collateral Agent (other than a discharge or release by or as a result of payment under such guarantee after the provisions hereof if and to the extent that the Liens on Collateral are released, occurrence of a payment default or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge acceleration thereunder (it being understood that a release subject to a contingent reinstatement is still a release)), upon the release of such Liens;
(7) in connection with any enforcement action taken by the Controlling Collateral or a Lien Agent in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien Equal Priority Intercreditor Agreement; or
(8) as described under Article Nine.
(b) The Liens on the Collateral securing the Notes and the related Note Guarantees also shall automatically, subject to Section 14.02(d) below, and without the need for any further action by any Person be terminated and released,
(1) upon payment in contravention full of the terms principal of, together with accrued and unpaid interest on, the Notes and all other Obligations in respect of the Notes under this Indenture, the related Note Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid,
(2) upon a legal defeasance or covenant defeasance with respect to the Notes under this Indenture as described above in Article Thirteen or a satisfaction and discharge of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments Indenture with respect to the Notes as described under Article Four or
(3) pursuant to the Company Equal Priority Intercreditor Agreement described above and the Guarantors Security Documents with respect to the Notes, in each case, other than any contingent obligations (including contingent indemnity obligations not yet due or payable).
(c) In addition, any Lien on any Collateral may reasonably request be subordinated to evidence the holder of any Lien on such permitted release without the consent Collateral that is created, incurred, or assumed pursuant to clauses (2), (3), (4), (5), (6), (7), (8)(a), (9), (11), (12), (13), (15), (16), (17), (18), (19), (20), (21), (22), (23), (24), (25), (26), (27), (28), (31), (33), (35), (36), (38), (42), (43), (45), (46) and/or (47) of the Holders definition of “Permitted Liens” to the Notes. In releasing any Collateral pursuant to extent required by the terms of the Indenture or Obligations secured by such Liens.
(d) With respect to any Security Documentsrelease of Collateral, the Trustee shall, in the absence upon receipt of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Officer’s Certificate and an Opinion of Counsel certifying stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentthe Intercreditor Agreements, if anyas applicable, to such release have been satisfied.
met and that it is permitted for the Trustee or Notes Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee and the Notes Collateral Agent shall execute, deliver or acknowledge (bat the Issuer’s expense) If all Liens on such property instruments or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are releasedreleases to evidence the release, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; providedwithout recourse, however, that if the Company representation or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case warranty of any such subsequent first-priority Lienskind, will of any Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents or the Intercreditor Agreements and on shall do or cause to be done (at the terms and conditions Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document or in the Intercreditor Agreements to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate.
Appears in 1 contract
Sources: Indenture (Ww International, Inc.)
Release of Collateral. (ai) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, The Administrative Agent and the Lenders hereby direct the Administrative Agent, the Collateral Agent or the UK Security Documents Trustee, as the case may be terminatedbe, in each caseto release, in accordance with the provisions terms hereof, any Lien held by the Administrative Agent, the Collateral Agent or the UK Security Trustee, as the case may be, for the benefit of the Security Documents Secured Parties (and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released sale, transfer or disposition of all of the assets or Capital Stock of a Subsidiary under clause (B) below, to release the affected Subsidiary from its Guarantee with respect to the Notes, the release guaranty):
(A) against all of the property Collateral, upon final and assets indefeasible payment in full of such Guarantorthe Loans and Obligations and termination hereof;
(3B) if against any part of the Notes have been defeased Collateral sold, transferred or disposed of by the Borrower or any of its Subsidiaries to the extent such sale, transfer or disposition is permitted hereby (or permitted pursuant to Article 8 a waiver or satisfied and discharged pursuant to Article 12 consent of this Indenturea transaction otherwise prohibited hereby);
(4C) pursuant to an amendment against any Collateral acquired by the Borrower or waiver in accordance any of its Subsidiaries after the Closing Date and at least 70% of the purchase price therefor is within 120 days of the acquisition thereof financed with Article 9 of this IndentureIndebtedness secured by a Lien permitted by Section 8.1(c);
(5D) so long as no Unmatured Event of Default or Event of Default has occurred and is continuing, in the sole discretion of the Administrative Agent upon the request of the Borrower, against any part of the Collateral with a fair market value of less than $10,000,000 in the aggregate during the term of this Agreement as such fair market value may be certified to the extent required under Administrative Agent, the Intercreditor Agreement. The release of any Collateral from Agent and the terms hereof UK Security Trustee by the Borrower in an officer’s certificate acceptable in form and substance to the Administrative Agent, the Collateral Agent and the UK Security Trustee;
(E) against a part of the Security Documents or the Collateral which release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will does not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without require the consent of the Holders all of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security DocumentsLenders as set forth in Section 12.1(a)(ii), the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that if such release is authorized or permitted consented to by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.Required Lenders; 216
(bF) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters against the Collateral consisting of credit thereunder) are released, then Receivables Facility Assets upon the Company and entry by the Borrower and/or its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collaterala Permitted Accounts Receivables Securitization; provided, however, that if (y) neither the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of Administrative Agent nor the definition of Permitted Liens, then Collateral Agent nor the Company and its Subsidiaries will UK Security Trustee shall be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, execute any such document on terms which, in its opinion, would expose it to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (z) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of the Borrower or any of its Subsidiaries in respect of) all interests retained by the Borrower and/or any of its Subsidiaries, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral; and
(G) against any cash collateral securing LC Obligations as contemplated by Section 5.4 and Article IX, upon the written request of the Borrower to the Administrative Agent or the applicable Facing Agent, as the case may be, if at the time of the release of the Lien the Senior Secured Leverage Ratio, on a Pro Forma Basis, for the Test Period for the most recently ended Fiscal Quarter was not in excess of 3.75 to 1.00.
(ii) Each of the Lenders hereby directs the Administrative Agent to (or to cause the Administrative Agent to) execute and deliver or file such termination and partial release statements and such other things as are necessary to release Liens to be released pursuant to this Section 12.15 promptly upon the effectiveness of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent release or other representative for such first-priority Liens enter into intercreditor agreements contemplated or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreementpermitted herein.
Appears in 1 contract
Sources: Credit Agreement
Release of Collateral. (a) The Liens on the Collateral may be released from the Liens created by under the Security Documents at any time or from time to timesecuring the Notes Obligations will be released,
(A) in whole, upon payment in full of the principal of, accrued and unpaid interest, and premium, if any, on the Security Documents may be terminatedNotes;
(B) in whole, upon satisfaction and discharge as set forth under Article X;
(C) in each casewhole, upon a legal defeasance or covenant defeasance as set forth under Article VII;
(D) except in accordance connection with a Discharge of Senior Lender Claims, as to any asset constituting Collateral (A) that is sold, disposed of or transferred by the provisions Issuer or any of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled (to a release of assets included person that is not the Issuer or a Guarantor) in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, a transaction not prohibited under Section 4.08 (to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
interest sold, disposed of or transferred), if all other Liens on that asset securing the Obligations under the Credit Facilities, all other First Priority Lien Obligations and any Other Second-Lien Obligations then secured by that asset (1including all commitments thereunder) are contemporaneously released; or (B) as to enable which all other Liens on that asset securing the Company or Obligations under the Credit Facilities, all other First Priority Lien Obligations and any Restricted Subsidiary to sell, exchange or Other Second-Lien Obligations then secured by that asset (including all commitments thereunder) are otherwise dispose of any of the Collateral contemporaneously released as permitted under this Indenture by the documents governing the Credit Facilities and the Security Documentsall other First Priority Lien Obligations;
(2E) in compliance with Section 8.02, as to property that constitutes less than all or substantially all of the Collateral, with the consent of Holders of at least a majority in aggregate principal amount of the Notes and Other Second-Lien Obligations then outstanding, voting as one class (or, in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 all or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and substantially all of the Security Documents or the release ofCollateral, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of at least sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes and Other Second-Lien Obligations then outstanding, voting as one class), including consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes. In releasing any Collateral ;
(F) with respect to assets of a Guarantor upon release of such Guarantor from its Note Guarantee pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.9.04; and
(bG) If upon the Discharge of Senior Lender Claims and concurrent release of all Liens on such property or assets Collateral securing First-First Priority Liens (including all commitments and letters Lien Obligations; provided that if an Event of credit thereunder) are releasedDefault exists on the date of Discharge of Senior Lender Claims, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Second Priority Liens on the Collateral into first-priority Liens on securing the CollateralNotes Obligations will not be released pursuant to this clause (G), except to the extent property or assets constituting Collateral or any portion thereof was disposed of in order to pay First Priority Lien Obligations, until such Event of Default and all other Events of Default cease to exist; providedprovided further, however, that if the Company Issuer or Guarantor subsequently incurs First Priority Lien Obligations that are secured by Liens on property or assets of the Issuer or any Guarantor subsequently incurs first-priority of the type constituting the Collateral and such Liens are incurred in reliance on clause 12 (1) of the definition of Permitted Liens, then the Company Issuer and its Subsidiaries such Guarantors will be required to reinstitute the second-priority security arrangement arrangements with respect to such property or assets securing the new First Priority Lien Obligations in favor of the Holders of the Notes, which Security Agreements will constitute Second Priority Liens with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral property or assets securing such first-priority Liens new First Priority Lien Obligations to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liensnew First Priority Lien Obligations, with the second-second priority Lien held either by the administrative agent, Trustee as Collateral Agent for the Holders of the Notes or other collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company Issuer to hold the second-second priority Liens for the benefit of the Holders holder of the Notes and the Trustee all Other Second-Lien Obligations and subject to an intercreditor agreement in that provides the administrative agent or collateral agent for such new First Priority Lien Obligations substantially the same form rights and powers as afforded under the Intercreditor Agreement.
(b) Any release of any Lien on the Collateral under the Security Documents securing the Notes Obligations as provided in Section 12.02 will occur automatically and, upon receipt of an Officers’ Certificate and an Opinion of Counsel that all conditions precedent to such release have been satisfied and any instruments of termination, satisfaction or release deemed necessary or proper by, and prepared by, the Issuer, the Collateral Agent shall promptly deliver, at the Issuer’s or such Guarantor’s expense, such appropriate instruments acknowledging such release as the Issuer or the applicable Guarantor may reasonably request.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from Subject to Sections 12.03(b) and (c) hereof, the Liens created by securing the Security Documents at any time or from time to timeNotes will be automatically released, and the Security Documents may be terminated, in each case, in accordance with the provisions Trustee (subject to its receipt of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withas provided below) shall execute documents evidencing such release, or instruct the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modifyexecute, release and adjust as applicable, the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same at the CompanyIssuer’s sole cost and expense, under one or more of the following circumstances:
(1i) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any in whole upon:
(A) payment in full of the Collateral as permitted principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to Indenture, the Notes, the release of Subsidiary Guarantees and the property Collateral Documents that are due and assets of payable at or prior to the time such Guarantorprincipal, together with accrued and unpaid interest, are paid;
(3B) if satisfaction and discharge of this Indenture as set forth under Article VIII; or
(C) a legal defeasance or covenant defeasance of this Indenture as set forth under Article VIII;
(ii) in whole or in part, with the consent of Holders of the Notes have been defeased pursuant to in accordance with Article 8 or satisfied and discharged pursuant to Article 12 IX of this Indenture;
(4iii) pursuant in part, as to any asset constituting Collateral:
(A) that is sold or otherwise disposed of:
(I) by the Issuer or any Guarantor to any Person that is not the Issuer or a Guarantor in a transaction not prohibited by this Indenture at the time of such transfer or disposition, including, without limitation, as a result of a transaction of the type permitted under Section 4.6,
(II) if all other Liens on that asset securing the First Priority Credit Obligations then secured by that asset are released, or
(III) in connection with the taking of an amendment or waiver enforcement action by the First Priority Designated Agent in respect of the First Priority Credit Obligations in accordance with Article 9 of this Indenture;the First Priority Intercreditor Agreement,
(5B) to that is owned or at any time acquired by a Grantor that has been released from its Subsidiary Guarantee, concurrently with the extent required under release of such Subsidiary Guarantee,
(C) that becomes Excluded Property, or
(D) that is otherwise released in accordance with the applicable provisions of the Collateral Documents and the First Priority Intercreditor Agreement. The release of , but subject to any Collateral from restrictions thereon set forth in this Indenture or the terms hereof and First Priority Intercreditor Agreement; provided that, on the date of the Security Documents or repayment in full of the release of, in whole or in partFirst Priority Credit Obligations, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the First Priority Liens on the Collateral in contravention of the provisions hereof if and will not be released, except to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of such Collateral or a Lien any portion thereof was disposed of in accordance compliance with the terms of the Security Documents and this Indenture will not be deemed for First Priority Intercreditor Agreement in order to repay First Priority Credit Obligations secured by such Collateral.
(b) With respect to any purpose to be an impairment release of the Lien on the Collateral in contravention Collateral, upon receipt of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Collateral Documents and that all conditions precedentthe First Priority Intercreditor Agreement, if anyas applicable, to such release have been satisfiedmet and that it is proper for the Trustee or Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release, and any necessary instruments of termination, satisfaction, discharge or release prepared by the Issuer, the Trustee shall, or shall cause the Collateral Agent to, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release and discharge of any Collateral permitted to be released pursuant to this Indenture or the Collateral Documents or the First Priority Intercreditor Agreement. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Collateral Document or in the First Priority Intercreditor Agreement to the contrary, the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction, discharge or termination, unless and until it receives such Officers’ Certificate and Opinion of Counsel.
(bc) If all Liens on such property At any time when a Default or assets securing First-Priority Liens (including all commitments Event of Default has occurred and letters of credit thereunder) are released, then is continuing and the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 maturity of the definition Notes has been accelerated (whether by declaration or otherwise) and the Trustee has delivered notice of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect acceleration to the Collateral in favor Agent, no release of Collateral pursuant to the Notesprovisions of this Indenture or the Collateral Documents shall be effective as against the Holders, which, except as otherwise provided in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the First Priority Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Western Digital Corp)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the First Lien Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withSecurity Documents, the Company First Lien Intercreditor Agreement and this Indenture, the Issuers and the Guarantors will be entitled to a the automatic release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable the Issuers and/or one or more Guarantors to consummate the sale, transfer or other disposition (including by the termination of capital leases or the repossession of the leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Company or any Restricted a Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as Company) to the extent permitted under this Indenture and the Security Documentsby Section 3.5;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(3) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturean Investment Grade Event;
(4) pursuant to the release of Collateral Excess Proceeds or Excess Proceeds that remain unexpended after the conclusion of an amendment Asset Disposition Offer or waiver a Collateral Asset Disposition Offer conducted in accordance with Article 9 of this Indenture;
(5) as described under Article IX hereof;
(6) if the property subject to such Lien becomes Excluded Asset;
(7) to release or subordinate any Lien on any property granted to or held by the Notes Collateral Agent under any Security Document to the holder of any Lien on such property that is a Permitted Lien under clauses (9) or (12) (in the case of clause (12), upon the reasonable request of the Issuer, to the extent required under by the Intercreditor Agreement. The release terms of the agreements governing such Permitted Lien) of the definition thereof; or
(8) if any Collateral Guarantor ceases to be a Restricted Subsidiary, or becomes excluded from the terms hereof Collateral, in each case as a result of a transaction not prohibited hereunder or designation permitted hereunder.
(b) The Liens on the Collateral securing the Notes and the Notes Guarantees also will be automatically released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Notes Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid,
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.2 and Section 8.3 hereof, or a discharge of this Indenture as described under Section 11.1 hereof,
(3) pursuant to the Security Documents or the First Lien Intercreditor Agreement; or
(4) subject to Section 9.2, if the release ofof such Lien is approved, authorized or ratified in whole or writing by Holders of at least a majority in partprincipal amount of the Notes outstanding at such time.
(c) Notwithstanding anything contained in the Note Documents to the contrary, upon request by the Notes Collateral Agent at any time, the Liens created by Holders shall confirm in writing the Security DocumentsNotes Collateral Agent’s irrevocable authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the termination Notes Guarantee; provided that the absence of such confirmation shall not affect in any way the validity of the Security automatic releases of security interest or Guarantee contemplated by such Note Documents. In each case as described in Section 12.1(a) and (b), will not be deemed to impair the Liens on Notes Collateral Agent shall, at the Collateral in contravention Issuers’ expense and upon receipt of the provisions hereof if an Officer’s Certificate and Opinion of Counsel, execute and deliver to the extent that Issuers or the Liens on applicable Guarantor such documents as the Issuer or such Guarantor may reasonably request to evidence the release of such item of Collateral are released, or from the assignment and security interest granted under the Security Documents are terminatedor to subordinate its interest in such item, pursuant or to this Indenture or evidence the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien such Guarantor from its obligations under the Notes Guarantee, in each case in accordance with the terms of the Indenture and applicable Security Documents and this Indenture will not be deemed for Document.
(d) Notwithstanding Section 12.2(a)(3) hereof, if, after any purpose to be an impairment Investment Grade Event, both of the Lien on Rating Agencies withdraw their Investment Grade Rating or downgrade the Collateral in contravention of rating assigned to the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as Notes below an Investment Grade Rating, the Company Issuers and the Guarantors may shall use commercially reasonable efforts to take all actions reasonably request necessary to evidence any such permitted release without provide to the consent Notes Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes. In releasing any Collateral pursuant Notes valid, perfected, first priority security interests (subject to the terms of the Indenture or any Security Documents, the Trustee shall, Permitted Liens) in the absence Collateral within ninety (90) days after such Reversion Date or as soon as reasonably practicable thereafter.
(e) With respect to any release of its negligence or willful misconduct be entitled to receiveCollateral, and shall be fully protected in relying uponupon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedentthe First Lien Intercreditor Agreement, if anyas applicable, to such release have been satisfied.
met, the Trustee and the Notes Collateral Agent shall, execute, deliver or acknowledge (bat the Issuers’ expense) If all Liens on such property any instruments or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then releases to evidence the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents or the First Lien Intercreditor Agreement and on shall do or cause to be done (at the terms and conditions Issuers’ expense) all acts reasonably requested of them to release such L▇▇▇ as soon as is reasonably practicable. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document or in the First Lien Intercreditor Agreement to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate, upon which it shall be entitled to conclusively rely.
Appears in 1 contract
Sources: Indenture (Windstream Parent, Inc.)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Initial Intercreditor Agreements and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withSecurity Documents, the Company Initial Intercreditor Agreements and this Indenture, the Issuers and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Notes Obligations under any one or more of the following circumstances:
(1i) to enable the Company Issuers and/or the Guarantors to consummate the disposition of property or any Restricted Subsidiary assets to sellthe extent consummated in accordance with, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documentsnot prohibited by, Section 4.10 hereof;
(2ii) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(3iii) if in the Notes have been defeased pursuant case of a sale or other transfer as part of or in connection with an Asset Sale or other disposition by the Issuers or any Guarantor to Article 8 a Person other than the Issuers or satisfied and discharged pursuant a Guarantor (unless such property or other assets transferred to Article 12 a Person that is the Issuers or a Guarantor are automatically, substantially concurrently with or in advance of such release, the subject of Liens granted by such transferee securing the Notes) in a transaction permitted under this Indenture;
(4iv) in respect of the property and assets of a Restricted Subsidiary that is a Guarantor, upon the designation of such Guarantor to be an Unrestricted Subsidiary in accordance with the terms of this Indenture or upon such Restricted Subsidiary otherwise becoming an Excluded Subsidiary;
(v) (A) in respect of the property and assets of a Guarantor that at any time is not subject to a Lien securing the New Senior Secured Credit Facilities (including by becoming an Excluded Asset (including Equity Interests of a Person that is sold or transferred)) or (B) upon the occurrence of a Specified Tax Event;
(vi) as described under Article 9 hereof;
(vii) in respect of any property and assets of the Issuers or a Guarantor that would constitute ABL Priority Collateral but is at such time not subject to a Lien securing ABL Obligations;
(viii) upon such property or other asset being released in respect of the Liens securing the New Senior Secured Credit Facilities or any replacement Credit Facilities in respect thereof (excluding in the case of the payment thereof);
(ix) as required by the terms of any applicable Intercreditor Agreement;
(x) upon such property or asset becoming an Excluded Asset; or
(xi) upon the occurrence of a Covenant Suspension Event.
(b) The Liens on the Collateral securing the Notes and the Guarantees also will be released:
(i) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(ii) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.02 and Section 8.03 hereof, or a discharge of this Indenture as described under Section 11.01 hereof; or
(iii) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the Initial Intercreditor Agreements.
(c) With respect to any release ofof Collateral, in whole or in partupon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture, the Liens created by the Security Documents, the First Lien Intercreditor Agreement and the ABL Intercreditor Agreement, as applicable, to such release have been met and that it is permitted for the Trustee and/or Notes Collateral Agent to execute and deliver the documents requested by the Issuers in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the termination Issuers, the Trustee and the Notes Collateral Agent shall, execute, deliver or acknowledge (at the Issuers’ expense) such instruments or releases to evidence the release of the Security Documents, will not any Collateral permitted to be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, released pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents or the Initial Intercreditor Agreements and this Indenture will not be deemed for any purpose shall do or cause to be an impairment done (at the Issuers’ expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the Lien on Trustee nor the Collateral in contravention of the terms of this Indenture. The Notes Collateral Agent shall promptly be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document or in the Initial Intercreditor Agreements to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent instrument of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture release, satisfaction or any Security Documentstermination, the Trustee shallunless and until it receives such Officer’s Certificate, in the absence of its negligence or willful misconduct upon which it shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedconclusively rely.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indentureor the Intercreditor Agreements. Upon In addition, upon the request of the Company Issuer pursuant to an Officers’ Officer’s Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withmet, the Company Issuer and the Guarantors will be entitled to a the release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize Collateral Agent and direct the Trustee and (if the Trustee is not then the Collateral Agent to modify, Agent) shall release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under any one or more of the following circumstances:
(1) to enable the Company Issuer to consummate the sale, transfer or any Restricted Subsidiary other disposition of such property or assets to sell, exchange or otherwise dispose of any of the Collateral as permitted extent not prohibited under this Indenture and the Security DocumentsSection 4.11 hereof;
(2) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in accordance with this Indenture;
(3) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(34) if with the consent of the holders of at least 75% of the aggregate principal amount of the Notes have been defeased pursuant to Article 8 then outstanding and affected thereby (including, without limitation, consents obtained in connection with a purchase of, or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment tender offer or waiver in accordance with Article 9 of this Indenture;exchange offer for, the Notes); or
(5) to as described in Article 9 hereof.
(b) For the extent required under the Intercreditor Agreement. The release avoidance of any Collateral from the terms hereof and of the Security Documents or the release ofdoubt, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of (1) the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required created by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents securing the Notes Obligations shall automatically be released and that all conditions precedentdischarged under the circumstances set forth in, if anyand subject to, Section 2.04 of the First Lien Intercreditor Agreement, (2) the Lien on the Shared Collateral created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, and subject to, Section 2.4(b) of the Shared Collateral Intercreditor Agreement and (3) the Lien on the Capital Stock of any applicable Subsidiary of the Issuer created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances, and only to such release have been satisfiedthe extent, set forth in, and subject to, Section 11.04(c) hereof and the second paragraph of Section 2.1 of the Security Agreement.
(bc) If all Liens on such property In the event the Issuer becomes subject to Rule 3-16 of Regulation S-X under the Securities Act, to the extent necessary and for so long as required for a Subsidiary of the Issuer not to be subject to the requirement to file separate financial statements with the SEC (or assets securing First-Priority Liens (including all commitments and letters any other governmental agency), the Capital Stock of credit thereunder) are released, then any Subsidiary of the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on Issuer shall not be included in the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral Notes and shall not be subject to the Liens securing the Notes and the Notes Obligations in favor accordance with and only to the extent provided in Article 2 of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Security Agreement.
(d) The Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee Guarantees also will be released automatically upon (i) payment in full of the principal of, together with accrued and subject unpaid interest on, and premium, if any, on, the Notes and all other Obligations under this Indenture, the Guarantees and the Security Documents that are due and payable at or prior to an intercreditor agreement in substantially the same form as the Intercreditor Agreementtime such principal, together with accrued and unpaid interest, are paid or (ii) a legal defeasance or covenant defeasance under Article 8 hereof or a discharge under Article 13 hereof.
Appears in 1 contract
Sources: Indenture (Toys R Us Inc)
Release of Collateral. (aA) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreements and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withSecurity Documents, the Company Intercreditor Agreements and this Indenture, the Issuers and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Notes Obligations under any one or more of the following circumstances:circumstances (with any such release being deemed to occur automatically upon the occurrence of such circumstance in the case of clauses (1), (2), (3) or (4) below):
(1) to enable upon the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any consummation of the Collateral as permitted sale, transfer or other disposition of such property or assets (to a Person that is not a Notes Party) to the extent not prohibited under this Indenture and the Security DocumentsSection 4.10 hereof;
(2) in respect of the case property and assets of a Guarantor, upon the release of such Guarantor that is released from its Guarantee with respect to the Notes, the release Notes pursuant to this Indenture;
(3) in respect of the property and assets of a Restricted Subsidiary that is a Guarantor, upon designation of such Guarantor;
(3) if Guarantor to be an Unrestricted Subsidiary in accordance with the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 terms of this Indenture;
(4) pursuant to upon such property or asset becoming an amendment or waiver in accordance with Article 9 of this IndentureExcluded Asset;
(5) to the extent required as described under the Intercreditor Agreement. The release Article 9 hereof;
(6) in respect of any property and assets that would constitute ABL Priority Collateral but are at such time not subject to a Lien securing ABL Obligations; or
(7) in respect to any particular item of Collateral, at such time as such item of Collateral has been released (or is substantially concurrently being released) from all liens securing the terms hereof Initial Term Loan Obligations and of the Security Documents any liens securing any other Pari Passu Obligations, any Permitted Junior Lien Obligations or the release ofany Certain Capital Markets Debt (or is otherwise not subject to a Lien securing Initial Term Loan Obligations, any other Pari Passu Obligations, any Permitted Junior Lien Obligations or any Certain Capital Markets Debt), in whole each case other than in connection with a repayment or discharge in part, the Liens created by the Security Documents, or the termination full of the Security Documents, will not be deemed to impair the such relevant Indebtedness.
(B) The Liens on the Collateral securing the Notes and the Guarantees also will be released
(1) upon payment in contravention full of the provisions hereof if principal of, together with accrued and to unpaid interest on, the extent that Notes and all other Obligations under this Indenture, the Liens on Collateral are released, or Guarantees and the Security Documents that are terminateddue and payable at or prior to the time such principal, pursuant to together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral as described under Section 8.02 or a Lien in accordance with the terms discharge of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral described under Section 11.01; or
(3) pursuant to the terms Intercreditor Agreements.
(C) With respect to any release of the Indenture or any Security DocumentsCollateral, the Trustee shall, in the absence upon receipt of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Officer’s Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentthe Intercreditor Agreements, if anyas applicable, to such release have been satisfied.
(b) If all Liens on met and that it is permitted for the Trustee or Collateral Agent to execute and deliver the documents requested by the Issuers in connection with such property release and any necessary or assets securing First-Priority Liens (including all commitments proper instruments of termination, satisfaction or release prepared by the Company, the Trustee and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on Agent shall, execute, deliver or acknowledge (at the Collateral; provided, however, that if Issuers’ expense) such instruments or releases to evidence or effect the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral released or permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents or the Intercreditor Agreements. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and on notwithstanding any term hereof or in any Security Document or in the terms and conditions of Intercreditor Agreements to the security documents relating to such first-priority Lienscontrary, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject the Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
Appears in 1 contract
Sources: Indenture (Forterra, Inc.)
Release of Collateral. (a) Collateral may be released from the Liens and security interests created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreements and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents, the Intercreditor Agreements and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Subsidiary Guarantees under any one or more of the following circumstances:
(1i) to enable upon consummation of the sale, transfer or other disposition of such Collateral by the Company or a Guarantor to any Restricted Subsidiary Person other than the Company or a Guarantor, to sellthe extent such sale, exchange transfer or otherwise dispose of any of the Collateral as permitted other disposition is not prohibited under this Indenture and the Security DocumentsIndenture;
(2ii) in the case of a Guarantor that is released from its Subsidiary Guarantee pursuant to the terms of this Indenture, with respect to the Notes, the release of the property and other assets of such Guarantor, upon the release of such Guarantor from its Subsidiary Guarantee;
(3iii) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture or (ii) upon the designation by the Company of such issuer of Capital Stock as an Unrestricted Subsidiary under this Indenture;
(4iv) pursuant with respect to any Collateral that becomes an amendment or waiver “Excluded Asset,” upon it becoming an Excluded Asset;
(v) in accordance with Article 9 of this IndentureSection 4.07(b);
(5vi) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention securing the Credit Agreement Obligations are released by the First Lien Collateral Agent (other than any release by, or as a result of, payment of the provisions hereof if and to Credit Agreement Obligations), upon the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of such Liens;
(vii) in connection with any enforcement action taken by the Controlling Collateral or a Lien Agent in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the First Lien Intercreditor Agreement; or
(viii) as described under Article 9.
(b) The Liens on the Collateral securing the Notes and the Subsidiary Guarantees also shall automatically and without the need for any further action by any Person be terminated and released:
(i) upon payment in contravention full of the terms principal of, together with accrued and unpaid interest on, the Notes and all other Obligations in respect of the Notes under this Indenture, the Subsidiary Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(ii) upon a legal defeasance or covenant defeasance with respect to the Notes under this Indenture as described below under Sections 8.01(b) and 8.02, or a satisfaction and discharge of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments Indenture as described under Section 8.01(a); or
(iii) pursuant to the Company First Lien Intercreditor Agreement, the First Lien/Second Lien Intercreditor Agreement and the Guarantors Security Documents with respect to the Notes.
(c) In addition, any Lien on any Collateral may reasonably request be (i) released or subordinated to evidence the holder of any Lien on such permitted release without the consent Collateral that is created, incurred or assumed pursuant to clauses (iv), (viii)(A) or (xxii) of the Holders definition of “Permitted Liens” to the Notes. In releasing any Collateral pursuant to extent required by the terms of the Indenture obligations secured by such Liens and (ii) subordinated to any Lien on any Mortgaged Property if required under the terms of any lease, easement, right of way or any Security Documentssimilar agreement effecting the Mortgaged Property provided such lease, the Trustee shalleasement, in the absence right of its negligence way or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required similar agreement is permitted by Section 13.044.07.
(d) With respect to any release of Collateral, upon receipt of an Officers’ Certificate and an Opinion of Counsel certifying stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property met and that it is permitted for the Trustee or assets securing First-Priority Liens (including all commitments Notes Collateral Agent to execute and letters of credit thereunder) are released, then deliver the documents requested by the Company in connection with such release and its Subsidiaries will take all steps required any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Trustee and the Notes Collateral Agent shall execute, deliver or acknowledge (at the Company’s expense) such instruments or releases to convert evidence the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents and on shall do or cause to be done (at the terms and conditions Company’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate.
Appears in 1 contract
Release of Collateral. The cross-collateralization set forth in Section 4.4 above shall continue so long as either (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security DocumentsLoans are outstanding, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters Bank One has any continuing commitment to advance funds under any of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the CollateralLoans; provided, however, the collateral for the Line of Credit Loan will be released (and the security agreements and UCC financing statements executed in connection with the Line of Credit Loan will be terminated, except for the Oxycal Security Agreement defined below and UCC financing statements executed by Oxycal) once the LOC Loan and all obligations related thereto have been paid and performed in full and Bank One has no further commitment under the LOC Loan Agreement, but only if no event of default, and no event which with notice and the passage of time would constitute an event of default ("INCIPIENT DEFAULT"), has occurred under the Project Loan Documents or the Building Loan Documents (other than an event of default or incipient default under the LOC Loan Documents that if has triggered an event of default or incipient default under the Company Project Loan Documents or any Guarantor subsequently incurs firstBuilding Loan Documents solely due to the cross-priority Liens in reliance on clause 12 defaulting of the definition Loans). Notwithstanding anything to the contrary in this Modification Agreement or in any of Permitted Liensthe other Loan Documents, then (a) the Company Deeds of Trust, and the real property pledged as collateral thereunder, and the Security Agreement dated March 1, 1999, executed by Oxycal in favor of Zila ("OXYCAL SECURITY AGREEMENT"), and the personal property pledged as collateral thereunder, shall continue to secure the Line of Credit Loan so long as any amounts are owed to Bank One under the LOC Loan Documents even after full payment and performance of the Building Loan and the Project Loan, and (b) the Deeds of Trust, and the real property pledged as collateral thereunder, shall continue to secure and cross-collateralize the Project Loan and the Building Loan until full payment and performance of both the Project Loan and the Building Loan and Bank One has no further obligation under the Letters of Credit; provided, however, Bank One agrees to release its Subsidiaries will be required to reinstitute the second-priority security arrangement lien with respect to the Collateral building securing the Building Loan (as such building is more specifically described on Exhibit "A" to the Deed of Trust dated March 8, 1991 executed by Zila, the "BUILDING") upon either: (i) the repayment in favor full of all amounts due under the Building Loan and the Line of Credit Loan with no further commitment of Bank One to advance under the Line of Credit Loan, or (ii) the refinance, sale or sale/leaseback of the NotesBuilding in which (A) the proceeds of such refinance, which, in the case of any such subsequent first-priority Liens, will sale or sale/leaseback are paid to Bank One to be second-priority Liens on the Collateral securing such first-priority Liens applied to the same extent provided by the Security Documents and on the terms and conditions repayment of the security documents relating Building Loan in full with any excess to be applied to pay down the Line of Credit Loan, and (B) if a refinance, the amount of such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit refinance is at least 75% of the Holders appraised valued of the Notes and Building based upon an appraisal acceptable to Bank One, or if a sale or sale/leaseback, the Trustee and subject to amount of such sale is at least the amount of the appraised value of the Building based upon such an intercreditor agreement in substantially the same form as the Intercreditor Agreementappraisal.
Appears in 1 contract
Release of Collateral. (a) Subject to Section 10.03(b) and 10.04 hereof, Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withDocuments, the Company Intercreditor Agreement or as provided hereby. The Issuer and the Guarantors will be entitled to a release of property and other assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize Trustee (subject to its receipt of an Officer Certificate and direct Opinion of Counsel as provided below) shall release, or instruct the Trustee and Collateral Agent to modifyrelease, release and adjust as applicable, the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company Issuer or any Restricted Subsidiary Guarantor to sell, exchange or otherwise dispose of any of the Collateral as permitted to the extent not prohibited under this Indenture and the Security DocumentsSection 4.13;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;; or
(54) if the Notes have been discharged or defeased pursuant to Section 8.01 or Section 8.02. The second-priority lien on the ABL Collateral securing the Notes will terminate and be released automatically if the first-priority liens on the ABL Collateral are released by the Bank Collateral Agent (unless, at the time of such release of such first-priority liens, an Event of Default shall have occurred and be continuing under this Indenture). Notwithstanding the existence of an Event of Default, the second-priority lien on the ABL Collateral securing the Notes shall also terminate and be released automatically to the extent required the first-priority liens on the ABL Collateral are released by the Bank Collateral Agent in connection with a sale, transfer or disposition of ABL Collateral that is either not prohibited under the Intercreditor AgreementIndenture or occurs in connection with the foreclosure of, or other exercise of remedies with respect to, such ABL Collateral by the Bank Collateral Agent (except with respect to any proceeds of such sale, transfer or disposition that remain after satisfaction in full of the Lenders Debt). The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens liens on the Collateral in contravention of securing the provisions hereof if and to the extent Notes that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral otherwise would have been released pursuant to the terms first sentence of the this paragraph will be released when such Event of Default and all other Events of Default under this Indenture or any Security Documents, the Trustee shall, in the absence cease to exist. Upon receipt of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this all conditions precedent under the Indenture and the Security Documents (and that all conditions precedentTIA Section 314(d)), if any, to such release have been satisfied.
(b) If all Liens on such property met and any necessary or assets securing First-Priority Liens (including all commitments and letters proper instruments of credit thereunder) are releasedtermination, then satisfaction or release prepared by the Company and its Subsidiaries will take all steps required to convert Issuer, the Holders’ second-priority Liens on Trustee shall, or shall cause the Collateral into first-priority Liens on Agent, to execute, deliver or acknowledge (at the Collateral; provided, however, that if Issuer’s expense) such instruments or re- leases to evidence the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents or the Intercreditor Agreement. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in good faith in reliance upon any such Officer Certificate or Opinion of Counsel, and on notwithstanding any term hereof or in any Security Document to the terms and conditions of the security documents relating to such first-priority Lienscontrary, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer Certificate and Opinion of Counsel.
Appears in 1 contract
Sources: Indenture (Broan-NuTone LLC)
Release of Collateral. 6.3.1 Borrower shall pay to Agent for the benefit of Lenders one hundred percent (a100%) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and Net Sales Proceeds (Actual) of each sold Unit, cabana or other appurtenance in accordance with this Indenture. Upon the request a Project, which will be applied to payment of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee Outstanding Advances with respect to the Notessuch Project. Upon completion of a Project, the release consummation of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and closing of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed respective Sales Contracts with respect to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral Project pursuant to the terms thereof and upon receipt by Agent of the Indenture Net Sales Proceeds (Actual) of each such sold Unit, cabana or other appurtenance thereto in such Project, and provided Agent has not commenced the exercise of any remedies under this Agreement or any Security of the other Loan Documents, Agent shall execute a partial release from the Trustee shalllien of the applicable Security Instrument for such sold Unit, cabana or other appurtenance thereto in such Project.
6.3.2 With respect to any Project, at such time as the portion of the Loan used to construct such Project has been repaid and Agent is satisfied that:
(i) the Net Sales Proceeds (Projected) of Sales Contracts from the remaining Projects in the absence aggregate are at least one hundred ten percent (110%) of the aggregate Loan Amount Project Allocations for the remaining Projects;
(ii) the aggregate Loan Amount Project Allocations for the remaining Projects are in balance with the aggregate cost to complete as provided in the Project Budgets for the remaining Projects (taking into consideration Required Equity Funds and any additional equity contributions by Borrower); and
(iii) no Default or Event of Default has occurred and is continuing; then Agent shall execute partial releases from the applicable Security Instrument for the remainder of the Units of such Project for which the total portion of the Loan, attributable to such Project, has been repaid. Upon the full and complete release of a Project owned by a Guarantor, Agent and the Lenders shall release such Guarantor from its negligence or willful misconduct be entitled to receiveGuaranty (but not under its applicable Indemnity Agreement), and shall be fully protected assuming such Guarantor does not own any other Projects at the time of such release.
6.3.3 Notwithstanding the requirement in relying uponclause (i) of Section 6.3.2 above, in addition but subject to the documents required by requirements in clauses (ii) and (iii) of Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent6.3.2, if any, to such release have been satisfied.
the Net Sales Proceeds (bProjected) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are releasedSales Contracts from the remaining Projects do not provide the required coverage levels described in Section 6.3.2, then Borrower may make such cash payment against the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 outstanding balance of the definition of Permitted Liens, then the Company and its Subsidiaries will Loan as may be necessary to comply with such required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreementcoverage levels.
Appears in 1 contract
Sources: Revolving Credit Construction Loan Agreement (Wci Communities Inc)
Release of Collateral. (a) Collateral may Except as otherwise provided in subsections (b) and (c) of this Section 2.09 and the terms of the Transaction Documents, the Indenture Trustee shall release property from the lien of this Indenture only upon receipt by it of an Issuer Request accompanied by (i) an Officer's Certificate, (ii) an Opinion of Counsel, (iii) certificates in accordance with TIA Sections 314(c) and (d)(1), and (iv)(A) Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or (B) an Opinion of Counsel in lieu of such Independent Certificates to the effect that the TIA does not require any such Independent Certificates (which, so long as any Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer and no Insurer Default has occurred and is continuing, shall also be addressed to the Insurer); provided that no such Independent Certificates or Opinion of Counsel in lieu of such Independent Certificates shall be necessary in respect of property released from the Liens created by lien of the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, Indenture in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each such property consists solely of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedcash.
(b) If The Servicer, on behalf of the Issuer, shall be entitled to obtain a release from the lien of this Indenture for any Mortgage Loan and the Mortgaged Property at any time (i) after a payment by the Seller or the Servicer of the Purchase Price of the Mortgage Loan, (ii) after a Qualifying Substitute Mortgage Loan is substituted for such Mortgage Loan and payment of the Substitution Amount, if any, (iii) after liquidation of the Mortgage Loan in accordance with the applicable Servicing Agreement and the deposit of all Liens on Liquidation Proceeds and Insurance Proceeds in the Collection Account, (iv) upon the termination of a Mortgage Loan (due to, among other causes, a prepayment in full of the Mortgage Loan and sale or other disposition of the related Mortgaged Property), or (v) as contemplated by Section 8.01 of the Sale and Servicing Agreement.
(c) The Indenture Trustee shall, if requested by the Servicer or any Servicer, temporarily release or cause the applicable Custodian temporarily to release to such property or assets securing First-Priority Liens (including all commitments party the Mortgage File pursuant to the provisions of Section 4.15 of the Sale and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the CollateralServicing Agreement; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of Mortgage File shall have been stamped to signify the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect Issuer's pledge to the Collateral in favor of Indenture Trustee under the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementIndenture.
Appears in 1 contract
Sources: Indenture (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H1)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the First Lien Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withSecurity Documents, the Company First Lien Intercreditor Agreement and this Indenture, the Issuer and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable the Company Issuer and/or one or any Restricted Subsidiary more Guarantors to sellconsummate the sale, exchange transfer or otherwise dispose other disposition (including by the termination of any capital leases or the repossession of the Collateral as leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Issuer or a Guarantor) to the extent permitted under this Indenture and the Security Documentsby Section 4.10;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(3) if upon the Notes have been defeased pursuant suspension of the covenants described in Section 4.18 (provided that the investment grade ratings described in such section give effect to Article 8 or satisfied and discharged pursuant to Article 12 the proposed release of this Indenturethe Collateral);
(4) pursuant to the release of Excess Proceeds that remain unexpended after the conclusion of an amendment or waiver Asset Sale Offer conducted in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from that is or becomes an Excluded Asset; or
(6) pursuant to Article 9 hereof. For the terms hereof avoidance of doubt, to the extent that any Collateral is Disposed of as expressly permitted by the Credit Agreement to any Person other than the Issuer or any Guarantor, such Collateral shall be sold free and clear of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or which Liens shall be automatically released upon the termination consummation of the Security Documents, will not be deemed to impair the such Disposition.
(b) The Liens on the Collateral securing the Notes and the Guarantees also will be released:
(1) upon payment in contravention full of the provisions hereof if principal of, together with accrued and to unpaid interest on, the extent that Notes and all other Obligations under this Indenture, the Liens on Collateral are released, or Guarantees and the Security Documents that are terminateddue and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid,
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture pursuant to Section 8.02 and Section 8.03 hereof, or a discharge of this Indenture pursuant to Section 12.01 hereof, or
(3) pursuant to the Security Documents (including, without limitation, upon any release of any Liens (in whole or in part) pursuant to Section 7.15 of the Security Agreement) or the First Lien Intercreditor Agreement (including, without limitation, upon any release of any Liens (in whole or in part) by the Controlling Collateral Agent pursuant to Section 2.04 of the First Lien Intercreditor Agreement).
(c) Notwithstanding Section 11.02(a)(3) hereof, if, after receiving an investment grade rating, the Notes cease to have such investment grade rating, the Issuer and the Guarantors shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Notes Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes valid, perfected, first priority security interests (subject to Permitted Liens) in the Collateral within 30 days after the Reversion Date (or, solely in respect of Mortgages, 60 days thereafter) or as soon as reasonably practicable thereafter. In connection with executing or acknowledging any release of Lien on Collateral, the Trustee and Notes Collateral Agent shall be fully protected in relying upon an Opinion of Counsel and Officer’s Certificate to the effect that such release is permitted by this Indenture and related Security Documents and any conditions to such release have been complied with.
(d) With respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture, the Security Documents and the First Lien Intercreditor Agreement, as applicable, to such release have been complied with and that it is permitted for the Trustee and/or Notes Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee and the Notes Collateral Agent, as applicable, shall, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents or the First Lien Intercreditor Agreement and this Indenture will not be deemed for any purpose shall do or cause to be an impairment done (at the Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the Lien on Trustee nor the Collateral in contravention of the terms of this Indenture. The Notes Collateral Agent shall promptly be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document or in the First Lien Intercreditor Agreement to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent instrument of the Holders release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security DocumentsCounsel, the Trustee shall, in the absence of its negligence or willful misconduct upon which they shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedconclusively rely.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (SunCoke Energy, Inc.)
Release of Collateral. (a) Liens on Collateral may be released from securing the Liens created by the Security Documents at any time or from time to time, Notes and the Security Documents may Guarantees (other than the Intercompany Loans) shall, subject to Section 11.9(d) below, be terminatedautomatically and unconditionally released:
(i) in connection with any sale or other disposition of Collateral if the sale or other disposition does not violate Section 4.12(a) (Asset Sales) and, if the Collateral is stock of a Guarantor, in each caseconnection with any merger, consolidation, amalgamation or other combination in which such Guarantor is not the surviving corporation if the transaction does not violate Section 4.20 (Merger, Consolidation or Sale of Assets);
(ii) if the Collateral is an asset of a Guarantor (or one of its Subsidiaries) that is to be designated as an Unrestricted Subsidiary, upon designation of the Guarantor as an Unrestricted Subsidiary in accordance with the provisions Section 4.25 (Designation of the Security Documents Restricted and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security DocumentsUnrestricted Subsidiaries);
(2iii) in if the case Collateral is an asset of a Guarantor (or one of its Subsidiaries) that is to be released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted , upon release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, Guarantor from its Guarantee;
(iv) in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and accordance with the Security Documents and that all conditions precedentIntercreditor Agreement (as in effect on the Effective Date or as amended, if any, to such release have been satisfied.supplemented or otherwise modified after the Effective Date) upon the occurrence of an enforcement action;
(bv) If all Liens on such property upon legal defeasance or assets securing First-Priority Liens (including all commitments satisfaction and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders discharge of the Notes in accordance with Section 8.2 (Legal Defeasance and Discharge) or Section 8.5 (Satisfaction and Discharge of the Trustee and subject to an intercreditor agreement Indenture);
(vi) if the Collateral is a Specified Bank Account, upon the written request of the Parent, if the Parent certifies in substantially such request that as of the same form last day of the then most recent fiscal quarter ending after the Effective Date, such account did not have at least $10.0 million (or, if in a currency other than U.S. dollars, the U.S. dollar equivalent thereof) in deposits; and
(vii) as the Intercreditor Agreement.described in Article IX (
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the First Lien Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withSecurity Documents, the Company First Lien Intercreditor Agreement and this Indenture, the Issuer and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1i) to enable consummate the Company sale, transfer or any Restricted Subsidiary to sell, exchange other disposition (including by the termination of capital leases or otherwise dispose of any the repossession of the Collateral as permitted under this Indenture and leased property in a capital lease by the Security Documentslessor) of such property or assets (to a Person that is not the Issuer or a Subsidiary of the Issuer) to the extent consummated in accordance with Section 4.10;
(2ii) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to this Indenture, the release of the property and assets of such Guarantor;
(3iii) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturea Covenant Suspension Event;
(4iv) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in accordance with this Indenture; or
(v) as described under Article 9.
(b) The Liens on the Collateral securing the Notes and the Guarantees also will be released
(i) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest;
(ii) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.02 and Section 8.03, or a discharge of this Indenture as described under Section 11.01; or
(iii) pursuant to the First Lien Intercreditor Agreement.
(c) Notwithstanding Section 12.02(a)(iii), if, after any Covenant Suspension Event, a Reversion Date shall occur, then the Suspension Period with respect to such Covenant Suspension Event shall automatically terminate and all Collateral and Security Documents shall be reinstated and all actions reasonably necessary to provide to the Notes Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes valid, perfected, first priority security interests (subject to Permitted Liens) in the Collateral shall be taken within 90 days after such Reversion Date. Table of Contents
(d) With respect to any release of Collateral, upon receipt of an amendment or waiver in accordance with Article 9 Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture;
(5) to , the extent required under Security Documents and the First Lien Intercreditor Agreement. The , as applicable, to such release have been met and that it is permitted for the Trustee and/or Notes Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee and the Notes Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not permitted to be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, released pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents or the First Lien Intercreditor Agreement and this Indenture will not be deemed for any purpose shall do or cause to be an impairment done (at the Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the Lien on Trustee nor the Collateral in contravention of the terms of this Indenture. The Notes Collateral Agent shall promptly be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document or in the First Lien Intercreditor Agreement to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent instrument of the Holders release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security DocumentsCounsel, the Trustee shall, in the absence of its negligence or willful misconduct upon which it shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedconclusively rely.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Avantor, Inc.)
Release of Collateral. (a) Subject to Section 11.03(b), Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withcontrary in any Security Document, the Company and the Guarantors will be entitled to a release of assets included in the Liens on Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, Securities shall be immediately released with respect to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, relevant Collateral under any one or more of the following circumstances:
(1) to enable the disposition of such property or assets, including Capital Stock (other than to the Company or any Restricted Subsidiary a Guarantor) to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documentsextent not prohibited by Section 4.06;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the NotesGuarantee, the release of the property and assets of such Guarantor;
(3) if with respect to Collateral that is Capital Stock, upon the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this IndentureIndenture or upon the release of a Guarantor that has pledged such Capital Stock;
(4) pursuant to an amendment amendment, supplement or waiver in accordance with Article 9 of this Indenture9;
(5) if the Securities have been discharged or defeased pursuant to Article 8; or
(6) upon the extent required payment in full of the principal of, and together with accrued and unpaid interest on, the Securities and all other obligations under this Indenture, the Intercreditor Agreement. The release of any Collateral from the terms hereof Guarantees and of the Security Documents or the release ofthat are then due and payable (other than contingent indemnification obligations that, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of this Indenture and the Indenture or any Security Documents, survive the Trustee shalltermination thereof).
(b) The second-priority Lien on the ABL Priority Collateral securing the Securities and the Guarantees will terminate and be released automatically if the first-priority Liens on the ABL Priority Collateral are released by the Bank Collateral Agent (unless, at the time of such release of such first-priority Liens, an Event of Default shall have occurred and be continuing), other than (i) in connection with a Discharge of ABL Obligations under the absence of its negligence Credit Agreement or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition (ii) to the documents required extent prohibited under this Indenture. Notwithstanding the existence of an Event of Default, the second-priority Liens on the ABL Priority Collateral securing the Securities and the Guarantees shall also terminate and be released automatically to the extent the first-priority Liens on the ABL Priority Collateral are released by the Bank Collateral Agent in connection with a sale, transfer or disposition of ABL Priority Collateral that occurs in connection with the foreclosure of, or other exercise of remedies with respect to, ABL Priority Collateral by the Bank Collateral Agent (except with respect to any proceeds of such sale, transfer or disposition that remain after satisfaction in full of the Lenders Debt).
(c) With respect to any release of Collateral permitted by this Section 13.0411.03, upon receipt of a written request from the Company and supported by an Officers’ Certificate and an Opinion of Counsel certifying stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentthe Intercreditor Agreement, if any, to such release have been satisfied.
(b) If all Liens on such property met and that it is proper for the Trustee or assets securing First-Priority Liens (including all commitments Notes Collateral Agent to execute and letters of credit thereunder) are released, then deliver the documents requested by the Company in connection with such release, and its Subsidiaries will take all steps required any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Trustee shall, or shall cause the Notes Collateral Agent to, execute, deliver or acknowledge (at the Company’s expense) such instruments or releases to convert evidence the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents and on or the terms and conditions of Intercreditor Agreement. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate, and notwithstanding any term hereof or in any Security Document or in the Intercreditor Agreement to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate.
Appears in 1 contract
Sources: Indenture (LSB Industries Inc)
Release of Collateral. In addition to its rights under Sections 10.3 and 10.5, the Company (aand any Restricted Subsidiary with respect to any Collateral pledged by such Restricted Subsidiary) Collateral may be released from shall have the Liens created by the Security Documents right, at any time or and from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral (other than Trust Moneys (but other than Trust Moneys constituting Collateral Proceeds), which are subject to release from the Lien of the Security Documents as permitted provided under Article XI), upon compliance with the requirements and conditions of this Indenture Section 10.4, and the Trustee shall promptly release the same from the Lien of any of the Security DocumentsDocuments upon receipt by the Trustee (other than in the case of Section 10.4(d)) of a Release Notice (as hereinafter defined) requesting such release and describing the property to be so released, together with delivery of the following, among other matters:
(a) If the property to be released has a book value of at least $5,000,000, a Board Resolution of the Company requesting such release and authorizing an application to the Trustee therefor.
(b) An Officers, Certificate of the Company, dated not more than 30 days prior to the date of the application for such release, and signed also, in the case of the fol- 143 -133- lowing clauses (ii) and (iv) by an Appraiser or, if such property consists of securities, by a Financial Advisor, in each case stating in substance as to certain matters, including the following:
(i) that, in the opinion of the signers, the security afforded by the Security Documents will not be impaired by such release in contravention of the provisions of this Indenture, and that either (1) the Collateral to be released is not Collateral Proceeds and is not being replaced by comparable property, has a net book value of less than $750,000, and is not necessary for the efficient operation of the Company's and its Subsidiaries, remaining property or in the conduct of the business of the Company and its Subsidiaries as conducted immediately prior thereto, (2) the Collateral to be released is Trust Moneys representing Collateral Proceeds that are not required or cannot possibly be required through the passage of time or otherwise, to be used to purchase the Securities pursuant to Section 4.14; or (3) the Collateral to be released is being released in connection with an Asset Sale of such Collateral and the net proceeds (as defined in Section 10.4(d)) from such Asset Sale are being delivered to the Trustee (if required by Section 4.14) in accordance with, and to the extent required by, the provisions of Section 10.4(d);
(2ii) that, except in the case of a Guarantor release referred to in 10.4(b)(i)(2), that is released from its Guarantee with respect to the Notes, the release Company has either disposed of or will dispose of the property Collateral so to be released in compliance with all applicable terms of this Indenture and assets for a consideration representing, in the opinion of such Guarantor;
(3) if the Notes have been defeased pursuant signers, its fair value, which consideration may, subject to Article 8 or satisfied and discharged pursuant to Article 12 any other provision of this Indenture;
, consist of any one or more of the following: (4A) pursuant cash or Cash Equivalents, (B) obligations secured by a purchase money Lien upon the property so to an amendment be released and (C) any other property or waiver assets that, in accordance with Article 9 of this Indenture;
(5) each case, upon acquisition thereof by the Company, would be subject to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and Lien of the Security Documents or the release of(except as provided in Section 10.4(d)) and subject to no Lien other than certain Liens which, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or under the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms provisions of the Security Documents and this Indenture will not be deemed for any purpose relating thereto, are permitted to be an impairment superior to the Lien of the Lien on Trustee therein for the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent benefit of the Holders herein and therein, all of such consideration to be briefly described in the Notes. In releasing any Collateral pursuant to certificate;
(iii) that no Event of Default has occurred and is continuing;
(iv) the terms of the Indenture or any Security Documents, the Trustee shallFair Value, in the absence opinion of its negligence or willful misconduct the signers, of the property to be entitled to receive, and shall be fully protected in relying upon, in addition to released at the documents required by Section 13.04, an Officers’ Certificate and an Opinion date of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateralapplication for release; provided, however, that if it shall not be necessary under this clause (iv) to state the Company Fair Value of any property whose fair value is certified in a certificate of an Independent Appraiser or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 Independent Financial Advisor under Section 10.4(c); and
(v) that all conditions precedent herein provided for relating to the release of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor question have been complied with.
(c) If (i) the fair value of the Notesproperty to be released and of all other property released from the Lien of the Security Documents since the commencement of the then current calendar year, whichas shown by certificates required by Section 10.4(b), is 100i or more of the aggregate principal amount of the Securities outstanding on the date of the application, and (ii) the Fair Value of the Collateral to be so released, as shown by the certificate filed pursuant to paragraph (b) of this Section 10.4, is at least $250,000 and at least l. of the aggregate principal amount of the Securities outstanding on the date of the application, a certificate of an Independent Appraiser, or if such property consists of securities, a certificate of an Independent Financial Advisor, stating:
(1) the then fair value, in the case opinion of the signer, of the property to be released; and
(2) that such release, in the opinion of the signer, will not impair the Lien of any of the Security Documents in contravention of its terms.
(d) The net proceeds (excluding any Collateral Proceeds from any Asset Sale which are not required, or cannot possibly be required, through the passage of time or otherwise, to be used to purchase or redeem Securities under Section 4.14) or, if the Collateral so to be released is subject to a Prior Lien, a certificate of the trustee, mortgagee or other holder of such subsequent first-priority Liensprior Lien permitted by the Security Documents that it has received such net proceeds (except to the extent that the assignment thereof would violate the terms thereof or any agreement relating thereto) and has been irrevocably authorized by the Company to pay over to the Trustee any balance of such net proceeds remaining after the discharge of such Indebtedness secured by such Prior Lien permitted by the Security Documents; and, will if any property other than cash, Cash Equivalents or obligations is included in such net proceeds, such instruments of conveyance, assignment and transfer, if any, as may be second-priority Liens necessary, in the opinion of Counsel to be given pursuant to Section 10.4(e), to subject to the Lien of the Security Documents all the right, title and interest of the Company in and to such property. For the purposes of this Section 10.4(d), "net proceeds" means any cash, Cash Equivalents, obligations or other property received on the sale, transfer, exchange or other disposition of Collateral securing to be released, less a proportionate share of (i) brokerage commissions and other reasonable fees and expenses related to such first-priority Liens transaction and (ii) any provision for any Federal, state or local taxes payable as a result of such sale, transfer, exchange or other disposition.
(e) One or more Opinions of Counsel which, when considered collectively, shall be substantially to the same effect 146
(i) that any obligation included in the consideration for any property so to be released and to be received by the Trustee pursuant to Section 10.4(d) is a valid and binding obligation enforceable in accordance with its terms, subject to such customary exceptions regarding equitable principles, creditors, rights generally and bankruptcy as shall be reasonably acceptable to the Trustee in its sole judgment, and is effectively pledged under the Security Documents, (ii) that any Lien granted by a purchaser to secure a purchase money obligation is a fully perfected first priority Lien to the extent provided obtainable by filing or possession and such instrument granting such Lien is enforceable in accordance with its terms, (iii) either (x) that such instruments of conveyance, assignment and transfer as have been or are then delivered to the Trustee are sufficient to subject to the Lien of the applicable Security Documents all the right, title and interest of the Company in and to any property, other than cash, Cash Equivalents and obligations, that is included in the consideration for the Collateral so to be released and is to be received by the Trustee pursuant to Section 10.4(d), subject to no Lien other than Liens of the type permitted by the applicable Security Documents, or (y) that no instruments of conveyance, assignment or transfer are necessary for such purpose, (iv) that the Company has corporate power to own all property included in the consideration for such release, (v) in case any part of the money or obligations referred to in Section 10.4(d) has been deposited with a trustee or holder of a Prior Lien that the Collateral to be released, or a specified portion thereof, is or immediately before such release was subject to such Prior Lien permitted by the Security Documents and on that such deposit is required by such Prior Lien permitted by the terms Security Documents and (vi) that all conditions precedent herein and under any of the security documents Security Documents relating to the release of such first-priority LiensCollateral have been complied with.
(f) If the Collateral to be released is only a portion of a discrete parcel of Real Property, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.evidence that
Appears in 1 contract
Sources: Indenture (Toms Foods Inc)
Release of Collateral. (a) The Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and time with respect to the Security Documents may be terminated, in each case, Notes in accordance with the provisions of the Intercreditor Agreements, the other Security Documents and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withIntercreditor Agreements, the Company other Security Documents and this Indenture, the Issuer and the Guarantors will be entitled to a the automatic release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Notes Obligations under any one or more of the following circumstances:
(1) to enable the Company Issuer or any Restricted Subsidiary Guarantor to sellconsummate the sale, exchange transfer or otherwise dispose other disposition (including by the termination of any Capitalized Lease Obligations or the repossession of the Collateral as permitted leased property in a Capitalized Lease Obligation by the lessor) of such property or assets (other than to the Issuer or any Guarantor) to the extent not prohibited under this Indenture and the Security DocumentsSection 10.17 hereof;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Indenture, the release of with respect to the property and other assets of such Guarantor, upon the release of such Guarantor from its Guarantee;
(3) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of this the issuer of that Capital Stock that is not prohibited by the Indenture or (ii) upon the designation by the Issuer of such issuer of Capital Stock as an Unrestricted Subsidiary under the Indenture;
(4) pursuant with respect to any Collateral that becomes an amendment or waiver in accordance with Article 9 of this Indenture“Excluded Asset,” upon it becoming an Excluded Asset;
(5) in accordance with the second paragraph of Section 10.12.
(6) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention securing the Term Loan Obligations are released by the Term Loan Collateral Agent (other than any release by, or as a result of, payment of the provisions hereof if and to Term Loan Obligations), upon the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments Liens;
(7) as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, described in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedIntercreditor Agreements; or
(8) as described under Article Nine hereof.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority The Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the related Guarantees shall also automatically and without the need for any further action by any Person be terminated and released:
(1) upon payment in full and discharge of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations with respect to this Indenture, the related Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Sections 13.02 and 13.03 hereof, respectively, or a satisfaction and discharge of this Indenture as described under Section 4.01 hereof; or
(3) pursuant to the applicable provisions of the Intercreditor Agreements or the other Security Documents.
(c) With respect to any release of Collateral or subordination of the security interest related thereto, upon receipt of an Officer’s Certificate (upon which the Trustee and subject to an intercreditor agreement in substantially the same form as Notes Collateral Agent may conclusively rely) stating that all conditions precedent under this Indenture, the Intercreditor AgreementAgreements and the other Security Documents, as applicable, to such release or subordination have been met and that it is permitted for the Trustee and/or the Notes Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release or subordination and any necessary or proper instruments of termination, satisfaction or release or subordination prepared by the Issuer, the Trustee and the Notes Collateral Agent shall execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture, the Intercreditor Agreements and the other Security Documents. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof, in any Intercreditor Agreement or any other Security Document to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate.
Appears in 1 contract
Release of Collateral. (a) Liens on Collateral may be released from securing the Liens created by the Security Documents at any time or from time to time, Notes and the Security Documents may Guarantees (other than the Intercompany Loans) shall be terminatedautomatically and unconditionally released:
(i) in connection with any sale or other disposition of Collateral if the sale or other disposition does not violate Section 4.12(a) (Asset Sales) and, if the Collateral is stock of a Guarantor, in each caseconnection with any merger, consolidation, amalgamation or other combination in which such Guarantor is not the surviving corporation if the transaction does not violate Section 4.20 (Merger, Consolidation or Sale of Assets);
(ii) if the Collateral is an asset of a Guarantor (or one of its Subsidiaries) that is to be designated as an Unrestricted Subsidiary, upon designation of the Guarantor as an Unrestricted Subsidiary in accordance with the provisions Section 4.25 (Designation of the Security Documents Restricted and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security DocumentsUnrestricted Subsidiaries);
(2iii) in if the case Collateral is an asset of a Guarantor (or one of its Subsidiaries) that is to be released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted , upon release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, Guarantor from its Guarantee;
(iv) in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and accordance with the Security Documents and that all conditions precedentIntercreditor Agreement (as in effect on the Issue Date or as amended, if anysupplemented or otherwise modified after the Issue Date) upon the occurrence of an enforcement action;
(v) upon legal defeasance or satisfaction and discharge of the Notes in accordance with Section 8.2 (Legal Defeasance and Discharge) or Section 8.5 (Satisfaction and Discharge of the Indenture);
(vi) as described in Article IX (Amendments, to such release have been satisfiedSupplements and Waiver).
(b) If The Security Agents are authorized to release and each Holder, by accepting a Note, is deemed to authorize the Security Agents to release (and the Security Agents will, at the request of the Parent or Issuer, release) the security interest in all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 portion of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of connection with the Notes, which, in the case granting of any such subsequent first-priority Liens, will be second-priority Liens on the Permitted Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement as contemplated in substantially the same form as the Intercreditor Agreement.Section 4.9 (
Appears in 1 contract
Sources: Indenture (CEDC Finance Corp LLC)
Release of Collateral. (a) Subject to Section 11.02(b) and 11.03, the Notes Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indentureor the Intercreditor Agreements or as provided hereby. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company The Issuer and the Guarantors will be entitled to a release of assets included in the Notes Collateral from the Liens securing the NotesSecurities, and the Holders hereby irrevocably authorize and direct Trustee shall release, or instruct the Trustee and Collateral Agent to modifyrelease, release and adjust as applicable, the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company Issuer or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Notes Collateral as permitted under to any Person other than the Issuer or any Restricted Subsidiary (but excluding any transaction subject to Section 5.01 where the recipient is required to become the obligor on the Securities or a Guarantee) to the extent not prohibited by this Indenture and the Security DocumentsIndenture, including Section 4.06;
(2) to release Notes Collateral Excess Proceeds that remain unexpended after the conclusion of a Notes Collateral Asset Sale Offer conducted in accordance with this Indenture;
(3) in the case of a Guarantor that is released from its Guarantee with respect to the NotesSecurities in accordance with this Indenture, the release of the property and assets of such Guarantor;
(34) if in respect of the Notes have been defeased pursuant property and assets of a Guarantor, upon the designation of such Guarantor to Article 8 or satisfied be an Unrestricted Subsidiary in accordance with Section 4.04 and discharged pursuant to Article 12 the definition of this Indenture“Unrestricted Subsidiary”;
(45) in respect of the ABL Collateral (x) to the extent any first-priority liens on such ABL Collateral are released by the First Lien Agent in connection with a disposition of ABL Collateral to the extent not prohibited under Section 4.06 (except with respect to any proceeds of such disposition that remain after satisfaction in full of the First Priority Lien Obligations secured by such ABL Collateral) or (y) in accordance with an Intercreditor Agreement;
(6) pursuant to an amendment amendment, supplement or waiver in accordance with Article 9 of this Indenture;9; or
(57) if the Securities have been defeased pursuant to Section 8.01 or if this Indenture is discharged pursuant to Section 8.01. Notwithstanding the existence of any Event of Default, the junior lien on the ABL Collateral securing the Securities shall terminate and be released automatically to the extent required under the Intercreditor Agreement. The release of any first-priority liens on the ABL Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created are released by the Security DocumentsFirst Lien Agent in connection with a sale, transfer or the termination disposition of the Security Documents, will ABL Collateral that is either not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to prohibited under this Indenture or occurs in connection with the applicable Security Documents. The Trustee and each foreclosure of, or other exercise of remedies with respect to, such ABL Collateral by the First Lien Agent (except with respect to any proceeds of such sale, transfer or disposition that remain after satisfaction in full of the Holders acknowledge that a release First Priority Lien Obligations). Upon receipt of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentDocuments, if any, to such release have been satisfiedmet and any necessary or proper (as determined by the Issuer) instruments of termination, satisfaction or release have been prepared by the Issuer, the Collateral Agent shall execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Notes Collateral permitted to be released pursuant to this Indenture or the Security Documents or the Intercreditor Agreements.
(b) If all Liens on such property At any time when a Default or assets securing First-Priority Liens (including all commitments Event of Default has occurred and letters of credit thereunder) are released, then is continuing and the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 maturity of the definition Securities has been accelerated (whether by declaration or otherwise) and the Trustee (if not then also appointed and serving as Collateral Agent) has delivered a notice of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect acceleration to the Collateral in favor Agent, no release of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Notes Collateral securing such first-priority Liens pursuant to the same extent provided by provisions of this Indenture or the Security Documents and on will be effective as against the terms and conditions of the security documents relating to such first-priority LiensHolders, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement except as otherwise provided in substantially the same form as the Intercreditor AgreementAgreements.
Appears in 1 contract
Sources: Indenture (Egalet Corp)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indentureor the Intercreditor Agreements. Upon In addition, upon the request of the Company Issuer pursuant to an Officers’ Officer’s Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withmet, the Company Issuer and the Subsidiary Guarantors will be entitled to a the release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize First Lien Collateral Agent and direct the Trustee and (if the Trustee is not then the First Lien Collateral Agent to modify, Agent) shall release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under any one or more of the following circumstances:
(1) to enable the Company Issuer to consummate the sale, transfer or any Restricted Subsidiary other disposition of such property or assets to sell, exchange or otherwise dispose of any of the Collateral as permitted extent not prohibited under this Indenture and the Security DocumentsSection 4.08 hereof;
(2) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in accordance with this Eighteenth Supplemental Indenture;
(3) in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Eighteenth Supplemental Indenture, the release of the property and assets of such Subsidiary Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment with the consent of the holders of at least 75% of the aggregate principal amount of the Notes then outstanding and affected thereby and a majority of all Junior Lien Obligations then outstanding and affected thereby (including, without limitation, consents obtained in connection with a tender offer or waiver in accordance with Article 9 of this Indentureexchange offer for, or purchase of, Junior Lien Obligations);
(5) to the extent that such Collateral is released or no longer required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pledged pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, Credit Facilities; or
(6) as described in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedArticle 9 hereof.
(b) If all Liens on such property or assets securing First-Priority Liens For the avoidance of doubt, (including all commitments and letters of credit thereunder1) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens Lien on the Collateral into first-priority Liens created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, and subject to, Section 2.04 of the First Lien Intercreditor Agreement and (2) the Lien on the Collateral; providedShared Receivables Collateral created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, howeverand subject to, Section 2.4(b) of the Additional Receivables Intercreditor Agreement. Any certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an Officer of the Company, except in cases where Section 314(d) requires that if such certificate or opinion be made by an independent engineer, appraiser or other expert.
(c) To the Company extent necessary and for so long as required for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act to file separate financial statements with the SEC (or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 other governmental agency), the Capital Stock of any Subsidiary of the definition of Permitted LiensIssuer (excluding Healthtrust, then the Company Inc. — The Hospital Company, a Delaware corporation and its Subsidiaries will successors and assigns) shall not be required to reinstitute included in the second-priority security arrangement Collateral with respect to the Collateral in favor of Notes and shall not be subject to the Notes, which, in Liens securing the case of any such subsequent first-priority Liens, will be second-priority Notes and the Notes Obligations .
(d) The Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee Subsidiary Guarantees also will be released automatically upon (i) payment in full of the principal of, together with accrued and subject unpaid interest on, and premium, if any, on, the Notes and all other Obligations under this Eighteenth Supplemental Indenture, the Subsidiary Guarantees and the Security Documents that are due and payable at or prior to an intercreditor agreement the time such principal, together with accrued and unpaid interest, are paid or (ii) a legal defeasance or covenant defeasance under Article 8 hereof or a discharge under Article 13 hereof.
(e) Notwithstanding anything to the contrary herein, the Issuer and its Subsidiaries shall not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they determine, in substantially good faith based on advice of counsel, that under the same form terms of that section and/or any interpretation or guidance as to the Intercreditor Agreementmeaning thereof of the SEC and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) of the Trust Indenture Act is inapplicable to the release of Collateral.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens and security interests created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreements and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents, the Intercreditor Agreements and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Securities and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Guarantees under any one or more of the following circumstances:
(1b) to enable upon consummation of the sale, transfer or other disposition of such Collateral by the Company or a Guarantor to any Restricted Subsidiary Person other than the Company or a Guarantor, to sellthe extent such sale, exchange transfer or otherwise dispose of any of the Collateral as permitted other disposition is not prohibited under this Indenture and the Security DocumentsIndenture;
(2i) in the case of a Guarantor that is released from its Guarantee pursuant to the terms of this Indenture, with respect to the Notes, the release of the property and other assets of such Guarantor, upon the release of such Guarantor from its Guarantee;
(3ii) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture;
(4iii) pursuant with respect to any Collateral that becomes an amendment or waiver in accordance with Article 9 of this Indenture“Excluded Asset,” upon it becoming an Excluded Asset;
(5c) [reserved];
(i) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention securing the Credit Agreement Obligations are released by the First Lien Collateral Agent (other than any release by, or as a result of, payment of the provisions hereof if and to Credit Agreement Obligations), upon the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of such Liens;
(ii) in connection with any enforcement action taken by the Controlling Collateral or a Lien Agent in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the First Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments Intercreditor Agreement; or
(iii) as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfieddescribed under Article 9.
(bd) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority The Liens on the Collateral securing such first-priority Liens to the same extent provided Securities and the Guarantees also shall automatically and without the need for any further action by any Person be terminated and released:
(e) upon payment in full of the principal of, together with accrued and unpaid interest on, the Securities and all other Obligations in respect of the Securities under this Indenture, the Guarantees and the Security Documents that are due and on payable at or prior to the terms time such principal, together with accrued and conditions of the security documents relating to such first-priority Liensunpaid interest, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.are paid;
Appears in 1 contract
Release of Collateral. (a) Collateral may be released Subject to the payment --------------------- of its fees and expenses pursuant to Section 6.07 hereof, the Indenture Trustee ------------ may, and when required by the provisions of this Indenture shall, execute instruments to release property from the Liens created by lien of this Indenture, or convey the Security Documents at any time or from time to time, and Indenture Trustee's interest in the Security Documents may be terminatedsame, in each case, in accordance a manner and under circumstances that are not inconsistent with the provisions of the Security Documents and in accordance with this Indenture. Upon No party relying upon an instrument executed by the request Indenture Trustee as provided in this Article VIII shall be bound to ascertain the Indenture Trustee's authority, ------------ inquire into the satisfaction of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and any conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, or see to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose application of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedmoneys.
(b) If The Indenture Trustee shall, at such time as there are no Notes Outstanding and all Liens on such property or assets securing First-Priority Liens sums due to the Certificateholders pursuant to Section 5.02(b) of the Sale and Servicing Agreement, to the Servicer pursuant to Section ------- 8.02
(including all commitments c) (i)(A) hereof, to the Indenture Trustee pursuant to Section 8.02(c)(i)(B) ------------- --------------------- hereof, to the Owner Trustee pursuant to Section 8.02(c)(i)(C) hereof and letters to the --------------------- Custodian pursuant to Section 8.02(c)(i)(D) hereof have --------------------- been paid, release any remaining portion of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on that secured the Collateral; provided, however, that if Notes from the Company lien of this Indenture and release to the Issuer or any Guarantor subsequently incurs first-priority Liens in reliance other Person entitled thereto any funds then on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, deposit in the case Trust Accounts. The Indenture Trustee shall release property from the lien of any such subsequent first-priority Liensthis Indenture pursuant to this Subsection (b) only upon receipt of an Issuer Request -------------- accompanied by an Officer's Certificate, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided an Opinion of Counsel and (if required by the Security Documents TIA) Independent Certificates in accordance with TIA Sections 314(c) and on 314(d)(1) meeting the terms and conditions applicable requirements of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.Section 11.01 hereof. -------------
Appears in 1 contract
Sources: Indenture (Ace Securities Corp)
Release of Collateral. (a) Subject to Section 11.02(b) and 11.03, the Notes Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with or the Intercreditor Agreements or as provided by Section 11.08 or by this IndentureSection 11.02(a). Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company The Issuer and the Guarantors will be entitled to a release of assets included in the Notes Collateral from the Liens securing the NotesSecurities, and the Holders hereby irrevocably authorize and direct Trustee shall release, or instruct the Trustee and Collateral Agent to modifyrelease, release and adjust as applicable, the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under one or more of the following circumstances:
(1i) to enable the Company Issuer or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Notes Collateral as to any Person other than the Issuer or any Restricted Subsidiary of the Issuer (but excluding any transaction subject to Article 5 where the recipient is required to become the obligor on the Securities or a Guarantee) to the extent permitted under or not prohibited by this Indenture and the Security DocumentsIndenture, including Section 4.06;
(2ii) in the case of a Guarantor that is released from its Guarantee with respect to the NotesSecurities in accordance with this Indenture, the release of the Capital Stock (to the extent transferred to a party other than an Issuer or a Guarantor in a transaction not prohibited under Section 4.06) and property and assets of such Guarantor; provided, however, that if the Issuer or its Restricted Subsidiaries retains any Capital Stock of the applicable Guarantor following a sale, disposition, exchange or other transfer of the Capital Stock of such Guarantor, the Liens on such retained Capital Stock shall not be released;
(iii) in respect of the property and assets of a Restricted Subsidiary, upon the designation of such GuarantorRestricted Subsidiary to be an Unrestricted Subsidiary in accordance with Section 4.04 and the definition of “Unrestricted Subsidiary”;
(3iv) if in respect of the Notes have been defeased pursuant ABL Collateral (x) to Article 8 the extent any first-priority liens on such ABL Collateral are released by the First Lien Agent in connection with a disposition of ABL Collateral to the extent permitted or satisfied and discharged pursuant not prohibited under Section 4.06 (except with respect to Article 12 any proceeds of this Indenture;such disposition that remain after satisfaction in full of the First Priority Lien Obligations secured by such ABL Collateral) or (y) in accordance with an Intercreditor Agreement; or
(4v) pursuant to an amendment amendment, supplement or waiver in accordance with Article 9 9. Notwithstanding the existence of this Indenture;
(5) any Event of Default, the junior lien on the ABL Collateral securing the Securities shall terminate and be released automatically to the extent required under the Intercreditor Agreement. The release of any first-priority liens on the ABL Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created are released by the Security DocumentsFirst Lien Agent in connection with a sale, transfer or the termination disposition of the Security Documents, will ABL Collateral that is either not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to prohibited under this Indenture or occurs in connection with the applicable Security Documents. The Trustee and each foreclosure of, or other exercise of remedies with respect to, such ABL Collateral by the First Lien Agent (except with respect to any proceeds of such sale, transfer or disposition that remain after satisfaction in full of the Holders acknowledge that a release First Priority Lien Obligations). Upon receipt of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedentDocuments, if any, to such release have been satisfiedmet and any necessary or proper (as determined by the Issuer) instruments of termination, satisfaction or release have been prepared by the Issuer, the Collateral Agent shall execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Notes Collateral permitted to be released pursuant to this Indenture or the Security Documents or the Intercreditor Agreements.
(b) If all Liens on such property At any time when a Default or assets securing First-Priority Liens (including all commitments Event of Default has occurred and letters of credit thereunder) are released, then is continuing and the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 maturity of the definition Securities has been accelerated (whether by declaration or otherwise) and the Trustee (if not then also appointed and serving as Collateral Agent) has delivered a notice of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect acceleration to the Collateral in favor Agent, no release of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Notes Collateral securing such first-priority Liens pursuant to the same extent provided by provisions of this Indenture or the Security Documents and on will be effective as against the terms and conditions of the security documents relating to such first-priority LiensHolders, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement except as otherwise provided in substantially the same form as the Intercreditor AgreementAgreements.
Appears in 1 contract
Sources: Indenture (Quotient LTD)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indentureor the Intercreditor Agreements. Upon In addition, upon the request of the Company Issuer pursuant to an Officers’ Officer’s Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withmet, the Company Issuer and the Subsidiary Guarantors will be entitled to a the release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize First Lien Collateral Agent and direct the Trustee and (if the Trustee is not then the First Lien Collateral Agent to modify, Agent) shall release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under any one or more of the following circumstances:
(1) to enable the Company Issuer to consummate the sale, transfer or any Restricted Subsidiary other disposition of such property or assets to sell, exchange or otherwise dispose of any of the Collateral as permitted extent not prohibited under this Indenture and the Security DocumentsSection 4.08 hereof;
(2) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in accordance with this Tenth Supplemental Indenture;
(3) in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Tenth Supplemental Indenture, the release of the property and assets of such Subsidiary Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment with the consent of the holders of at least 75% of the aggregate principal amount of the Notes then outstanding and affected thereby and a majority of all Junior Lien Obligations then outstanding and affected thereby (including, without limitation, consents obtained in connection with a tender offer or waiver in accordance with Article 9 of this Indentureexchange offer for, or purchase of, Junior Lien Obligations);
(5) to the extent that such Collateral is released or no longer required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pledged pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, Credit Facilities; or
(6) as described in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedArticle 9 hereof.
(b) If all Liens on such property or assets securing First-Priority Liens For the avoidance of doubt, (including all commitments and letters of credit thereunder1) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens Lien on the Collateral into first-priority Liens created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, and subject to, Section 2.04 of the First Lien Intercreditor Agreement and (2) the Lien on the Collateral; providedShared Receivables Collateral created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, howeverand subject to, Section 2.4(b) of the Additional Receivables Intercreditor Agreement. Any certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an Officer of the Company, except in cases where Section 314(d) requires that if such certificate or opinion be made by an independent engineer, appraiser or other expert.
(c) To the Company extent necessary and for so long as required for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act to file separate financial statements with the SEC (or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 other governmental agency), the Capital Stock of any Subsidiary of the definition of Permitted LiensIssuer (excluding Healthtrust, then the Company Inc. — The Hospital Company, a Delaware corporation and its Subsidiaries will successors and assigns) shall not be required to reinstitute included in the second-priority security arrangement Collateral with respect to the Collateral in favor of Notes and shall not be subject to the Notes, which, in Liens securing the case of any such subsequent first-priority Liens, will be second-priority Notes and the Notes Obligations .
(d) The Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee Subsidiary Guarantees also will be released automatically upon (i) payment in full of the principal of, together with accrued and subject unpaid interest on, and premium, if any, on, the Notes and all other Obligations under this Tenth Supplemental Indenture, the Subsidiary Guarantees and the Security Documents that are due and payable at or prior to an intercreditor agreement the time such principal, together with accrued and unpaid interest, are paid or (ii) a legal defeasance or covenant defeasance under Article 8 hereof or a discharge under Article 13 hereof.
(e) Notwithstanding anything to the contrary herein, the Issuer and its Subsidiaries shall not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they determine, in substantially good faith based on advice of counsel, that under the same form terms of that section and/or any interpretation or guidance as to the Intercreditor Agreementmeaning thereof of the SEC and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) of the Trust Indenture Act is inapplicable to the release of Collateral.
Appears in 1 contract
Release of Collateral. (a) Subject to Section 13.3(b), Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the ABL-Notes Intercreditor Agreement, the Pari Passu Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withcontrary in any Note Document, the Company and the Guarantors will be entitled to a release of assets included in the Liens on Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, Notes shall automatically (without further action) be released with respect to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, relevant Collateral under one or more any of the following circumstances:
(1) to enable the Company sale or any Restricted Subsidiary other disposition of such property or assets, including Capital Stock (other than to sellthe Issuer or a Guarantor), exchange to the extent not prohibited under Section 3.5, or otherwise dispose to the extent arising from the sale or other disposition of any of the Collateral as permitted under property or assets that does not constitute an Asset Disposition in a transaction not prohibited by this Indenture and the Security DocumentsIndenture;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes in accordance with Section 10.2, the release of the property and assets of such GuarantorGuarantor being released;
(3) if with respect to Collateral that is Capital Stock, upon the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture;
(4) to the extent such Collateral is comprised of property leased to the Issuer or a Guarantor, upon termination or expiration of such lease;
(5) with respect to any Collateral that becomes an “Excluded Asset” or that becomes subject to certain Permitted Liens (but only to the extent the agreement governing such other Permitted Lien prohibits the granting of other liens on the Collateral);
(6) pursuant to an amendment amendment, supplement or waiver in accordance with Article 9 of this Indenture;IX; or
(57) if the Notes have been discharged or defeased pursuant to Article VIII or Article XI.
(b) The second-priority Lien on the extent required under ABL Collateral securing the Intercreditor Agreement. The release of any Collateral from Notes and the terms hereof Guarantees shall terminate and of be released automatically if the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the first-priority Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on ABL Collateral are releasedreleased by the ABL Collateral Agent (unless, or at the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each time of the Holders acknowledge that a such release of Collateral or a Lien such first-priority Liens, an Event of Default shall have occurred and be continuing under this Indenture) in accordance connection with the terms sale, transfer or disposition of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant ABL Collateral, subject to the terms of the Indenture ABL-Notes Intercreditor Agreement, other than (i) in connection with any such release by the ABL Collateral Agent in connection with the Discharge of the ABL Obligations or any Security Documents(ii) to the extent prohibited under this Indenture. Notwithstanding the existence of an Event of Default, the Trustee shall, in second-priority Lien on the absence of its negligence or willful misconduct ABL Collateral securing the Notes and the Note Guarantees shall also terminate and be entitled to receive, and shall be fully protected in relying upon, in addition released automatically to the documents required extent the first-priority Liens on the ABL Collateral are released by the ABL Collateral Agent in connection with a sale, transfer or disposition of ABL Collateral that occurs in connection with the foreclosure of, or other exercise of remedies with respect to, ABL Collateral by the ABL Collateral Agent (except with respect to any proceeds of such sale, transfer or disposition that remain after satisfaction in full of the ABL Obligations).
(c) With respect to any release of Collateral permitted by this Section 13.0413.3, upon receipt of a written request from the Issuer and supported by an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and each stating that all conditions precedentprecedent under this Indenture, the Security Documents, the ABL-Notes Intercreditor Agreement and the Pari Passu Intercreditor Agreement, if any, to such release have been satisfied.
(b) If all Liens on such property met, and any necessary or assets securing First-Priority Liens (including all commitments and letters proper instruments of credit thereunder) are releasedtermination, then satisfaction or release prepared by the Company and its Subsidiaries will take all steps required Issuer, subject to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 terms of the definition of Permitted LiensPari Passu Intercreditor Agreement, then the Company and its Subsidiaries will be required Trustee shall, or shall cause the Notes Collateral Agent to, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to reinstitute evidence the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority LiensCollateral permitted to be released pursuant to this Indenture, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents or the ABL-Notes Intercreditor Agreement and on the terms and conditions of Pari Passu Intercreditor Agreement. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document, the ABL-Notes Intercreditor Agreement or the Pari Passu Intercreditor Agreement to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate and an intercreditor agreement in substantially the same form as the Intercreditor AgreementOpinion of Counsel.
Appears in 1 contract
Sources: Indenture (BMC Stock Holdings, Inc.)
Release of Collateral. (a) Liens on Collateral may securing the Notes and the Guarantees (other than the Intercompany Loans) shall be automatically and unconditionally released:
(i) in connection with any sale or other disposition of Collateral if the sale or other disposition does not violate Section 4.12(a) (Asset Sales) and, if the Collateral is stock of a Guarantor, in connection with any merger, consolidation, amalgamation or other combination in which such Guarantor is not the surviving corporation if the transaction does not violate Section 4.20 (Merger, Consolidation or Sale of Assets);
(ii) if the Collateral is an asset of a Guarantor (or one of its Subsidiaries) that is to be designated as an Unrestricted Subsidiary, upon designation of the Guarantor as an Unrestricted Subsidiary in accordance with Section 4.25 (Designation of Restricted and Unrestricted Subsidiaries);
(iii) if the Collateral is an asset of a Guarantor and the Intercreditor Agreement (or one of its Subsidiaries) that is to be released from its Guarantee pursuant to the Liens created by terms of this Indenture, upon release of the Security Documents at any time or Guarantor from time to time, and the Security Documents may be terminated, in each case, its Guarantee;
(iv) in accordance with the provisions Security Documents (as in effect on the Issue Date or as amended, supplemented or otherwise modified after the Issue Date) upon the occurrence of an enforcement action;
(v) upon legal defeasance or satisfaction and discharge of the Security Documents and Notes in accordance with this Section 8.2 (Legal Defeasance and Discharge) or Section 8.5 (Satisfaction and Discharge of the Indenture. Upon );
(vi) as described in Article IX (Amendments, Supplements and Waiver).
(b) The Security Agents are authorized to release and each Holder, by accepting a Note, is deemed to authorize the Security Agents to release (and the Security Agents will, at the request of the Company pursuant Parent or Issuer, release) the security interest in all or any portion of the Collateral in connection with the granting of any Permitted Collateral Lien as contemplated in Section 4.9 (Limitation on Liens). The Issuer or the relevant Guarantor shall re-grant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company Security Agents or the Trustee and the Guarantors will be entitled to Security Agents, immediately after such Permitted Collateral Lien is granted, a security interest in such released Collateral; provided that: (i) the release and re-taking of assets included any security interest in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of this Section 11.9(b) shall only be undertaken to the extent necessary, as determined in good faith by the Issuer or the relevant Guarantor (which determination shall be conclusive) to be required to grant the Permitted Collateral Lien; and (ii) the Issuer or the relevant Guarantor shall provide the Security Documents Agents or the Trustee with an Opinion of Counsel regarding the validity and this Indenture will not enforceability of any security interest securing the Notes that is re-taken, which opinion may be deemed for any purpose subject to exceptions, limitations and exclusions reasonably determined by such counsel to be an impairment necessary or appropriate, including in light of applicable law.
(c) The Trustee and/or the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release Security Agents are hereby authorized, without the consent of any Holder, to take all necessary actions to effectuate any release in accordance with this Section 11.9. The Trustee and/or the Holders Security Agents are hereby authorized, without the consent of the Notes. In releasing any Collateral pursuant Holder, to the terms take all necessary actions to effectuate any amendment, extension, renewal, restatement, supplement, modification or replacement of the Indenture (and release or cancel or otherwise terminate any Security Documents, the Trustee shall, Document replaced or restated pursuant thereto) in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by compliance with Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
4.24 (b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (CEDC Finance Corp LLC)
Release of Collateral. (a) The Liens on the Collateral may be released from securing the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors Notes will be entitled automatically released with respect to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sellin whole, exchange or otherwise dispose of any upon payment in full of the Collateral as permitted under this Indenture principal of, accrued and unpaid interest and premium, if any, and all other obligations on the Security DocumentsNotes due and payable at such time;
(2) in whole, upon satisfaction and discharge of this Indenture in accordance with the case of a Guarantor that is released from its Guarantee terms hereof with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if in whole, upon a Legal Defeasance or Covenant Defeasance with respect to the Notes have been defeased pursuant to Article 8 VIII;
(4) as to any property or satisfied and discharged pursuant asset constituting Collateral that is sold or otherwise disposed of by any of the Grantors (other than to another Grantor) in a transaction not prohibited by this Indenture at the time of such sale or disposition;
(5) in whole or in part, with the consent of the Holders of the requisite percentage of Notes in accordance Article 12 IX;
(6) in whole, with respect to the Collateral owned by any Guarantor, upon the release of the Guarantee of such Guarantor in accordance with the terms of this Indenture;
(47) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, with respect to any property or asset of any Grantor that is or becomes an Excluded Property under the Liens created by the Security Documents, or the termination terms of the Security Collateral Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and .
(8) to the extent that provided in the Liens on applicable provisions of the Collateral are released, Documents or the Security Documents are terminatedIntercreditor Agreement;
(9) in whole or in part, pursuant with respect to this Indenture any property or asset of any Grantor that is released from the applicable Security Documents. The Trustee and each of Collateral securing the Holders acknowledge that a release of Collateral or a First Lien Obligations in accordance with the terms of the Security Documents First Lien Documents; and
(10) in whole, during any period of time that (a)(i) at least two Rating Agencies have rated the Notes as Investment Grade and this Indenture (ii) no Default has occurred and is continuing, or (b) at least two of Fitch, S&P and Moody’s have confirmed in writing that the Company’s Credit Rating will not be deemed for any purpose Investment Grade after giving effect to be an impairment the release of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to accordance with the terms of the Indenture or any Security Collateral Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Intercreditor Agreement (Babcock & Wilcox Enterprises, Inc.)
Release of Collateral. (a) The Liens on the Collateral may will be released from with respect to the Liens created Notes and the Note Guarantees:
(1) in whole, upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Notes Obligations under this Indenture, the Note Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8 hereof;
(3) in whole, upon satisfaction and discharge of this Indenture in accordance with Article 11 hereof;
(4) in part, as to any asset constituting Collateral, in connection with any enforcement in accordance with the Security Documents (including, without limitation, the Intercreditor Agreement);
(5) except as contemplated by the Security Documents at any time or from time to time(including, and the Security Documents may be terminatedwithout limitation, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement), with the consent of Holders of at least 66 2/3% in the aggregate principal amount of Notes then outstanding, including, without limitation, at consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Company’s sole cost and expense, under one or more of the following circumstances:Notes as provided in Section 9.02 hereof;
(16) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose so long as no Event of any of the Collateral as permitted Default has occurred and is continuing under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect subject to the Notes, the release terms of the property and assets Intercreditor Agreement, to enable the Issuer and/or one or more Guarantors to consummate the sale, transfer or other disposition of such Guarantor;
(3) if property or assets to the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver extent consummated in accordance with Article 9 the XHR Credit Agreements and any Additional Pari Passu Agreements; provided that any proceeds with respect of this Indenture;
(5) such sale, transfer or other disposition shall be required to be distributed to the extent required under Collateral Agent, the Trustee or the Holders in accordance with the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of; or
(7) otherwise, in whole or in part, upon the release of such Liens created (i) upon the Collateral Release Date (as defined in the XHR Credit Agreements) under the XHR Credit Agreements, or (ii) to consummate any transaction permitted by the Security Documents, or XHR Credit Agreements and this Indenture (including the termination incurrence of the Security Documents, will not be deemed to impair the Permitted Liens on the Collateral such Collateral), in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien case in accordance with the terms of the Security Documents XHR Credit Agreements and this Indenture will not be deemed for any purpose Additional Pari Passu Agreements.
(b) With respect to be an impairment any release of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security DocumentsSection 12.03(a) hereof, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and Company shall be fully protected in relying upon, in addition deliver to the documents required by Section 13.04, Trustee and the Collateral Agent an Officers’ Officer’s Certificate and an Opinion of Counsel certifying stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents relating to the execution and that all conditions precedent, if any, to delivery of such release have been satisfied.
(b) If all Liens on complied with and that such property or assets securing First-Priority Liens (including all commitments and letters release will not violate the terms of credit thereunder) are releasedthis Indenture, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company Intercreditor Agreement or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the other applicable Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementDocument.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indentureor the Intercreditor Agreements. Upon In addition, upon the request of the Company Issuer pursuant to an Officers’ Officer’s Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withmet, the Company Issuer and the Subsidiary Guarantors will be entitled to a the release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize First Lien Collateral Agent and direct the Trustee and (if the Trustee is not then the First Lien Collateral Agent to modify, Agent) shall release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under any one or more of the following circumstances:
(1) to enable the Company Issuer to consummate the sale, transfer or any Restricted Subsidiary other disposition of such property or assets to sell, exchange or otherwise dispose of any of the Collateral as permitted extent not prohibited under this Indenture and the Security DocumentsSection 4.08 hereof;
(2) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in accordance with this Eighth Supplemental Indenture;
(3) in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Eighth Supplemental Indenture, the release of the property and assets of such Subsidiary Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment with the consent of the holders of at least 75% of the aggregate principal amount of the Notes then outstanding and affected thereby and a majority of all Junior Lien Obligations then outstanding and affected thereby (including, without limitation, consents obtained in connection with a tender offer or waiver in accordance with Article 9 of this Indentureexchange offer for, or purchase of, Junior Lien Obligations);
(5) to the extent that such Collateral is released or no longer required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pledged pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, Credit Facilities; or
(6) as described in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedArticle 9 hereof.
(b) If all Liens on such property or assets securing First-Priority Liens For the avoidance of doubt, (including all commitments and letters of credit thereunder1) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens Lien on the Collateral into first-priority Liens created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, and subject to, Section 2.04 of the First Lien Intercreditor Agreement and (2) the Lien on the Collateral; providedShared Receivables Collateral created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, howeverand subject to, Section 2.4(b) of the Additional Receivables Intercreditor Agreement. Any certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an Officer of the Company, except in cases where Section 314(d) requires that if such certificate or opinion be made by an independent engineer, appraiser or other expert.
(c) To the Company extent necessary and for so long as required for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act to file separate financial statements with the SEC (or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 other governmental agency), the Capital Stock of any Subsidiary of the definition of Permitted LiensIssuer (excluding Healthtrust, then the Company Inc. — The Hospital Company, a Delaware corporation and its Subsidiaries will successors and assigns) shall not be required to reinstitute included in the second-priority security arrangement Collateral with respect to the Collateral in favor of Notes and shall not be subject to the Notes, which, in Liens securing the case of any such subsequent first-priority Liens, will be second-priority Notes and the Notes Obligations.
(d) The Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee Subsidiary Guarantees also will be released automatically upon (i) payment in full of the principal of, together with accrued and subject unpaid interest on, and premium, if any, on, the Notes and all other Obligations under this Eighth Supplemental Indenture, the Subsidiary Guarantees and the Security Documents that are due and payable at or prior to an intercreditor agreement the time such principal, together with accrued and unpaid interest, are paid or (ii) a legal defeasance or covenant defeasance under Article 8 hereof or a discharge under Article 13 hereof.
(e) Notwithstanding anything to the contrary herein, the Issuer and its Subsidiaries shall not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they determine, in substantially good faith based on advice of counsel, that under the same form terms of that section and/or any interpretation or guidance as to the Intercreditor Agreementmeaning thereof of the SEC and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) of the Trust Indenture Act is inapplicable to the release of Collateral.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens created by Except as otherwise set forth in the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security DocumentsAgreement in favor of the Lender, or with respect to the Collateral shall terminate (i) with respect to any Collateral released pursuant to Section 3.02(c), upon receipt by the Lender of the certificate required by such Section, and (ii) with respect to all of the Collateral upon (A) payment in full of the Loans and all other Obligations due hereunder and (B) termination of the Security DocumentsFacility. Notwithstanding anything to the contrary contained herein, will any payment in full of the Loans and other Obligations hereunder, or termination of the Facility shall not be deemed act to impair release the Liens on interest of the lender in the Hybrid Facility in the Collateral in contravention of the provisions hereof if and (to the extent that and in the Liens on Collateral are released, amounts required in the Hybrid Facility Agreement) if the Hybrid Facility shall remain outstanding or any amounts remain owing thereunder.
(b) Upon the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien as set forth in accordance with Section 3.02(a), upon the terms request of, and at the expense of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of Borrowers, the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent Lender shall promptly execute and deliver file such releases or assignments of financing statements or, UCC termination statements and other documents and instruments as may be reasonably requested by the Company Borrowers to effectuate release of the Collateral. The Lender will not have legal title to any part of the released Collateral on and will have no further interest in or rights with respect to such Collateral.
(c) If no Default or Event of Default has occurred and is continuing, the Guarantors Borrowers may reasonably request to evidence any such permitted release without the consent of the Holders Lender, obtain a release of any Vehicle that is Collateral from the lien of the Notes. In releasing Security Agreement, including in connection with the sales or disposition of such Vehicles; provided that in connection with any Collateral pursuant such release, the Borrowers provide to the terms Lender (i) written prior written notice of such release, including an attached Borrowing Base Certificate and attached Vehicle Schedule (pro forma as of the Indenture or any Security Documents, date of such release) not less than three (3) Business Days before the Trustee shall, in the absence date of its negligence or willful misconduct be entitled to receivesuch release, and (ii) an officer’s certificate stating (A) no adverse selection was used in selecting the Vehicles to be released, (B) after giving effect to sale, no Borrowing Base Deficiency shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate exist and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedentdetailing, if anynecessary, a deposit of cash into the Sub-Account on such date representing a prepayment of principal in an amount necessary to cause no Borrowing Base Deficiency to exist, (C) no Default or Event of Default exists on the Facility, (D) no payment default has occurred and is continuing under the Hybrid Facility Agreement and (E) after giving effect to such release sale, no Hybrid Trigger Event shall have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments occurred and letters of credit thereunder) are released, then be continuing under the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Hybrid Facility Agreement.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, Subject to the extent provided for herein and in the Junior Lien Intercreditor Agreement, including, without limitation, at Liens on Collateral securing the Company’s sole cost Notes shall be automatically and expense, under one or more of the following circumstancesunconditionally released:
(1) as to any property or asset (including Capital Stock of a Subsidiary of the Issuer), to enable the Company Issuer and the Guarantors to consummate the disposition of such property or any Restricted asset (including Fleet Collateral) to the extent not prohibited by clause (6) below or under Section 4.9 or Section 4.8;
(2) to release Excess Proceeds, ABL Collateral Excess Proceeds and Fleet Collateral Excess Proceeds to the Issuer that remain unexpended after the conclusion of an Asset Sale Offer, an ABL Collateral Asset Offer or a Fleet Collateral Asset Sale Offer conducted in accordance with this Indenture and not required to be made a part of the Collateral;
(3) in respect of the property and assets of a Guarantor, upon the designation of such Guarantor to be an Unrestricted Subsidiary under Section 4.16;
(4) as described in Section 9.6;
(5) in respect of the property and assets of a Guarantor upon release or discharge of the Note Guarantee of such Guarantor in compliance with this Indenture; and
(6) as to sellthe pledge of Capital Stock of First-Tier Foreign Subsidiaries, exchange in connection with a reorganization, change or otherwise dispose modification of the direct or indirect ownership of Foreign Subsidiaries by the Issuer or a Guarantor, as applicable, in compliance with this Indenture, a release may be obtained as to such Capital Stock in connection with the substitution of pledge of 65% of the voting Capital Stock and 100% of the non-voting Capital Stock of any one or more new or replacement First-Tier Foreign Subsidiaries pursuant to valid Security Documents. Subject to the Junior Lien Intercreditor Agreement, the security interests in all Collateral securing the Notes also shall be released upon (1) payment in full of the Collateral as permitted principal of, together with accrued and unpaid interest, if any, on, the Notes and all other Notes Obligations under this Indenture and the Security Documents;
Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest are paid (including pursuant to a satisfaction and discharge of this Indenture as described under Section 8.5) or (2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 legal defeasance or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required covenant defeasance under the Intercreditor Agreement. The release of any Collateral from the terms hereof Indenture as described under Section 8.2 and of the Security Documents or the release of8.3, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedrespectively.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (FTS International, Inc.)
Release of Collateral. (a) The Liens upon the Collateral may will no longer secure a series of Notes or any obligations under this Indenture with respect to such series of Notes, and the right of the Holders of such series of Notes and such obligations to the benefits and proceeds of any such Liens on the Collateral will terminate and be released from discharged automatically and unconditionally with respect to such series of Notes:
(i) upon satisfaction and discharge of this Indenture with respect to such series of Notes;
(ii) upon a Legal Defeasance or Covenant Defeasance of the Liens created by Notes of such series as described in Section 8.2 and Section 8.3 hereof;
(iii) upon payment in full and discharge of all Notes of such series then outstanding under this Indenture and all Obligations that are outstanding, due and payable under this Indenture with respect to such series of Notes at the Security Documents time the Notes of such series are paid in full and discharged;
(iv) at any time on or from time after the first Collateral Offer Payment Date with respect to timesuch series of Notes;
(v) as to any property or asset constituting the Collateral that is sold or otherwise disposed of in compliance with the procedures set forth in this Indenture;
(vi) so long as any First Lien Notes or Refinancing Debt in respect thereof are outstanding and secured by the Collateral, if and only to the extent that the first-priority or other Liens on such Collateral securing such First Lien Notes or such Refinancing Debt have been released, except a release as a result of the repayment in full of the First Lien Notes or such Refinancing Debt;
(vii) in part, as to any property that is or becomes Excluded Property (as defined in the Security Documents may be terminatedAgreement) pursuant to a transaction permitted by this Indenture;
(viii) as to any property or asset constituting the Collateral of a grantor of a Lien, upon a sale or other disposition (including by way of consolidation, merger or amalgamation) of the Capital Stock of such grantor or the sale or disposition of all or substantially all the assets of the grantor to a Person other than to a Subsidiary of such grantor; or
(ix) in each casewhole or in part, in accordance with the provisions consent of (i) the Holders of a majority in principal amount of the Security Documents and Notes or (ii) in accordance with this Indenture. Upon the request case less than all of the Company pursuant several series of Notes then outstanding are affected by such termination and discharge, the Holders of not less than a majority in principal amount of each series of Notes so affected.
(b) With respect to any release of Collateral, upon receipt of an Officers’ Certificate and an Opinion of Counsel certifying stating that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on met and that it is permitted for the Trustee and/or Collateral Trustee to execute and deliver the documents requested by the Issuer in connection with such property release and any necessary or assets securing First-Priority Liens (including all commitments proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on Trustee shall, execute, deliver or acknowledge (at the Collateral; providedIssuer’s expense) such documents, however, that if instruments or releases to evidence the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents and on shall do or cause to be done (at the terms Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the Trustee nor the Collateral Trustee shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate, and conditions of notwithstanding any term hereof or in any Security Document to the security documents relating to such first-priority Lienscontrary, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject the Collateral Trustee shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate, upon which it shall be entitled to conclusively rely.
Appears in 1 contract
Sources: Indenture (Macy's, Inc.)
Release of Collateral. (a) The Liens on the Collateral may securing the Notes Guarantees will be released from upon the Liens created by delivery to the Security Documents at any time or from time to timeTrustee and Collateral Agent of an Officer’s Certificate that one of the following has occurred, and an Opinion of Counsel that all conditions to such release under the Security Documents may be terminatedterms of this Indenture have been satisfied:
(1) in whole, upon:
(i) payment in full of the Notes together with accrued and unpaid (or not yet capitalized in the case of PIK Interest) interest thereon and performance of all other obligations (other than contingent obligations that survive termination) of the Company and the Guarantors under the Notes Documents; or
(ii) satisfaction and discharge of this Indenture as set in Article 3 hereto;
(2) with respect to the property and assets of any Guarantor constituting Collateral, upon the release of such Guarantor from its Notes Guarantee in accordance with the terms of this Indenture;
(3) as to any Collateral that is sold, assigned, transferred, conveyed or otherwise disposed of to (a) a Person other than an Affiliate of such Guarantor or (b) a Spectrum Joint Venture, in each case, in accordance a transaction that at the time of such sale or disposition does not violate the provisions set forth in Section 4.11 and Section 11.01 hereto, as applicable;
(4) in whole or in part, with the provisions consent of Holders of the Security Documents requisite aggregate principal amount of Notes set forth in Article 10 hereof; or
(5) if and in accordance with this Indentureto the extent required by the Intercreditor Agreement. Upon Notwithstanding anything to the request of the Company contrary herein, a release pursuant to an Officers’ Certificate the foregoing clause (3) shall not be permitted while any Default or Event of Default has occurred and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled is continuing. Any request to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release Collateral shall be accompanied by an Opinion of Counsel and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the CompanyOfficer’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under Certificate stating that such release complies with this Indenture and the Security Documents;.
(2b) in The Company will comply with TIA §314(a)(1).
(c) To the case of a Guarantor that is released from its Guarantee with respect extent applicable, the Company will cause TIA §313(b), relating to the Notesreports, and TIA §314(d), relating to the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment securities or waiver in accordance with Article 9 of this Indenture;
(5) relating to the extent required under the Intercreditor Agreement. The release substitution therefor of any Collateral from property or securities to be subjected to the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination Lien of the Security Documents, will not to be deemed to impair the Liens on the Collateral in contravention complied with. Any certificate or opinion required by TIA §314(d) may be made by an officer of the provisions hereof if and Company except in cases where TIA §314(d) requires that such certificate or opinion be made by an independent Person, which Person will be an independent engineer, appraiser or other expert selected. Notwithstanding anything to the extent that the Liens on Collateral are releasedcontrary in this paragraph, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as neither the Company and nor the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute comply with all or any portion of TIA §314(d) if it determines, in good faith based on advice of counsel, that under the second-priority security arrangement terms of TIA §314(d) and/or any interpretation or guidance as to the meaning thereof of the SEC and its staff, including “no action” letters or exemptive orders, all or any portion of TIA §314(d) is inapplicable with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreementreleased Collateral.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, any Junior Lien Intercreditor Agreement, any Pari Passu Intercreditor and in accordance with Collateral Agency Agreement and this Indenture. Upon Notwithstanding anything to the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withcontrary in any Security Document, the Company and the Guarantors will be entitled to a release of assets included in the Liens on Collateral from the Liens securing the Notes, Notes shall be automatically and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, unconditionally released with respect to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, relevant Collateral under any one or more of the following circumstances:
(1) upon the sale, disposition or other transfer of such property or assets, including Capital Stock (other than to enable the Company Issuer or any Restricted Subsidiary a Guarantor) to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documentsextent not prohibited by Section 4.10;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNote Guarantee, the release of the property and assets of such Guarantor;
(3) if with respect to Collateral that is Capital Stock, upon the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this IndentureIndenture or upon the release of a Guarantor that has pledged such Capital Stock;
(4) pursuant to an amendment amendment, supplement or waiver in accordance with Article 9 of this Indenture9;
(5) if the Notes have been discharged or defeased pursuant to Article 8; or
(6) upon the extent required payment in full of the principal of, and together with accrued and unpaid interest on, the Notes and all other obligations under this Indenture, the Intercreditor Agreement. The release of any Collateral from the terms hereof Note Guarantees and of the Security Documents or the release ofthat are then due and payable (other than contingent indemnification obligations that, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents Documents, survive the termination thereof).
(b) With respect to any release of Collateral permitted by this Section 10.03, upon receipt of a written request from the Issuer and supported by an Officer’s Certificate and Opinion of Counsel stating that all conditions precedentprecedent under this Indenture and the Security Documents, any Junior Lien Intercreditor Agreement and any Pari Passu Intercreditor and Collateral Agency Agreement, if any, to such release have been satisfied.
met and that it is proper for the Trustee or Notes Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release, and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee or the Notes Collateral Agent, as applicable, shall, execute, deliver or acknowledge (bat the Issuer’s expense) If all Liens on such property instruments or assets securing First-Priority Liens (including all commitments and letters releases to evidence the release of credit thereunder) are releasedany Collateral permitted to be released pursuant to this Indenture or the Security Documents, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company any Junior Lien Intercreditor Agreement or any Guarantor subsequently incurs first-priority Liens Pari Passu Intercreditor and Collateral Agency Agreement. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance on clause 12 upon any such Officer’s Certificate and Opinion of the definition of Permitted LiensCounsel, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect notwithstanding any term hereof or in any Security Document, any Junior Lien Intercreditor Agreement or any Pari Passu Intercreditor and Collateral Agency Agreement to the Collateral in favor of the Notescontrary, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
Appears in 1 contract
Release of Collateral. (a) Collateral may The Liens securing the Securities will be released from the Liens created automatically released, all without delivery of any instrument or performance of any act by the Security Documents any party, at any time or and from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, time under one or more of the following circumstances:
(1i) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any in whole upon:
(A) payment in full of the Collateral as permitted principal of, together with accrued and unpaid interest (including Additional Amounts, if any) on, the Securities and all other Obligations under this Indenture Indenture, the Guarantees and the Security DocumentsDocuments (for the avoidance of doubt, other than contingent Obligations in respect of which no claims have been made) that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2B) in the case satisfaction and discharge of a Guarantor that is released from its Guarantee this Indenture with respect to the NotesSecurities as set forth under Section 8.01; or
(C) the Issuer’s exercise of its legal defeasance option or covenant defeasance option in respect of this Indenture with respect to the Securities in accordance with Sections 8.01 and 8.02 hereof, the release of the property and assets of such Guarantoras applicable;
(3ii) if in whole or in part, with the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 consent of this Indenture;
(4) pursuant to an amendment or waiver Holders of the requisite percentage of Securities in accordance with Article 9 of this Indenture;
(5iii) in part, as to any asset:
(I) constituting Collateral that is sold, transferred or otherwise disposed of by the Issuer or any of the Guarantors to any Person that is not the Issuer or a Guarantor in a transaction not prohibited by this Indenture (to the extent of the interest sold or disposed of) (but excluding any transaction subject to Section 5.01 hereof where the recipient is required to become the obligor on the Securities or a Guarantor hereunder),
(B) that is held by a Guarantor upon release of a Guarantee (with respect to Liens securing such Guarantee granted by such Guarantor) (including, so long as any Obligations remain outstanding under the Intercreditor Agreement. The Credit Agreement (or any refinancing thereof with other First Priority Lien Obligations) upon release of such Guarantor as a guarantor or borrower under the Credit Agreement for any Collateral from reason),
(C) that becomes an Excluded Asset, including so long as the terms hereof and Credit Agreement is outstanding, any asset that is not pledged to secure obligations arising in respect of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral Credit Agreement (whether pursuant to the terms of the Indenture Credit Agreement (and any related documents) or as a result of any determination made thereunder, or by amendment, waiver or otherwise) and thereby becomes an Excluded Asset,
(D) in the case of any Collateral subject to the First Lien Intercreditor Agreement or any Security Documents, the Trustee shallother Acceptable Intercreditor Agreement, in accordance with the absence terms thereof (including upon the taking of its negligence or willful misconduct be entitled to receiveenforcement action by any representative that is “controlling” thereunder), or
(E) that is otherwise released in accordance with, and shall be fully protected in relying uponas expressly provided for, in addition by the terms of any Security Document,
(b) With respect to any release of Collateral or release of the documents required by Section 13.04Securities from the Liens securing the Securities, upon receipt of an Officers’ Officer’s Certificate and an Opinion of Counsel certifying stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents (and that all conditions precedentthe First Lien Intercreditor Agreement or any other Acceptable Intercreditor Agreement, if anyas applicable), to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments met and letters of credit thereunder) are released, then that it is permitted for the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on Trustee and/or the Collateral into first-priority Liens on Agent to execute and deliver the Collateral; provideddocuments requested by the Issuer in connection with such release, howeverand any necessary or proper instruments of termination, that if satisfaction, discharge or release prepared by the Company Issuer, the Trustee shall, or shall cause the Collateral Agent to, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases (whether electronically or in writing) to evidence, and shall do or cause to be done all other acts reasonably necessary to effect, in each case as soon as reasonably practicable, the release and discharge of any Collateral or any Guarantor subsequently incurs first-priority Liens Securities permitted to be released pursuant to this Indenture, the Security Documents, the First Lien Intercreditor Agreement or such other Acceptable Intercreditor Agreement. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance on clause 12 upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Security Document or in the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect First Lien Intercreditor Agreement or in any other Acceptable Intercreditor Agreement to the Collateral in favor of the Notescontrary, whichbut without limiting any automatic release provided hereunder or under any Security Document, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject the Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction, discharge or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
Appears in 1 contract
Sources: Indenture (Clarivate Analytics PLC)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company second-priority Liens on the DIP Collateral and the Guarantors second-priority Liens on the Exit Collateral, as applicable, will be entitled automatically released with respect to a release of assets included in the Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Second Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable any Specified Collateral Party to consummate the Company sale, transfer or any Restricted Subsidiary to sell, exchange other disposition (including by the termination of capital leases or otherwise dispose of any the repossession of the Collateral as leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Issuer or a Subsidiary of the Issuer) to the extent permitted under this Indenture and by Section 3.5 or in connection with the Security DocumentsStaggered Emergence;
(2) in the case of a Guarantor Specified Collateral Party that is released from its Guarantee pledge of Collateral with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(3) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturean Investment Grade Event;
(4) pursuant to the release of Collateral Excess Proceeds or Excess Proceeds that remain unexpended after the conclusion of an amendment Asset Disposition Offer or waiver a Collateral Asset Disposition Offer conducted in accordance with Article 9 of this Indenture;
(5) as described under Article IX hereof;
(6) if the property subject to such Lien becomes Excluded Asset;
(7) to release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Security Document to the holder of any Lien on such property that is a Permitted Lien under clauses (9) or (12) (in the case of clause (12), upon the reasonable request of the Issuer, to the extent required under by the Intercreditor Agreement. The release terms of the agreements governing such Permitted Lien) of the definition thereof;
(8) if any Specified Collateral Party ceases to be a Restricted Subsidiary, or becomes excluded from the terms hereof and Collateral, in each case as a result of a transaction not prohibited hereunder or designation permitted hereunder;
(9) solely with respect to any DIP Collateral that does not constitute Exit Collateral, the occurrence of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed Conversion Date; or
(10) as to impair the Liens on the any asset constituting Collateral in contravention of the provisions hereof if and only to the extent that the Liens on such Collateral are releasedin favor of the First Priority Collateral Agent in respect of the Senior Secured Credit Facility Obligation have been released in accordance with their terms, or except a release as a result of the repayment in full of the Indebtedness then outstanding in respect of the Senior Secured Credit Facility Obligations.
(b) Notwithstanding anything to the contrary in the Security Documents and this Indenture, the Liens on the Collateral securing the Notes and the Notes Guarantees also will be automatically released:
(1) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Notes Guarantees and the Security Documents that are terminateddue and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.2 and Section 8.3 hereof, or a discharge of this Indenture as described under Section 11.1 hereof;
(3) pursuant to the Security Documents; or
(4) subject to Section 9.2, if the release of such Lien is approved, authorized or ratified in writing by Holders of at least a majority in principal amount of the Notes outstanding at such time.
(c) Notwithstanding anything contained herein to the contrary, upon request by the Collateral Agent at any time, the Holders shall confirm in writing the Collateral Agent’s irrevocable authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document; provided that the absence of such confirmation shall not affect in any way the validity of the automatic releases of security interest or Guarantee contemplated by this Indenture or the Collateral Agent obligations to comply with the provisions of the immediately following sentence. The Collateral Agent shall, at the Issuer’s expense and upon receipt of an Officer’s Certificate and Opinion of Counsel, execute and deliver to the Issuer or the applicable Grantor such documents and such amendments, modifications or supplements to any Security Documents, in each case as the Issuer or such Guarantor may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to evidence the release of such Grantor from its obligations under the Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document.
(d) Notwithstanding Section 12.2(a)(3), if, after any Investment Grade Event, both of the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating, the Issuer and the Grantors shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes valid, perfected, second priority security interests (subject to Permitted Liens) in the Collateral within ninety (90) days after such Reversion Date or as soon as reasonably practicable thereafter.
(e) With respect to any release of Collateral, upon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture and the Security Documents, as applicable, to such release have been met, the Trustee (if applicable) and the Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) any instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose shall do or cause to be an impairment done (at the Issuer’s expense) all acts reasonably requested of them to release such ▇▇▇▇ as soon as is reasonably practicable. Neither the Lien on Trustee nor the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent instrument of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture release, satisfaction or any Security Documentstermination, the Trustee shallunless and until it receives such Officer’s Certificate, in the absence of its negligence or willful misconduct upon which it shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedconclusively rely.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from The Co-Issuers and each Mortgaged Vessel Guarantor shall have the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary right to sell, exchange or otherwise dispose of any of the Collateral as permitted under owned by it (other than Trust Monies, which are subject to release from the Lien of this Indenture and the Security Documents;
Documents as set forth in Section 12.02) (2) in a “Release Transaction”), upon compliance with the case requirements and conditions of a Guarantor that is released from its Guarantee with respect to this Section 11.04(a), and the NotesCollateral Trustee shall, upon the release direction of the property and assets of such Guarantor;
(3) if Trustee, release the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 same from the Lien of this Indenture;
(4) pursuant to an amendment Indenture or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, as the case may be, upon receipt by the Trustee and the Collateral Trustee of a notice requesting such release (a “Release Notice”) and describing the property to be so released, together with delivery of the following:
(i) if the property to be released has a Fair Market Value equal to or greater than $10.0 million, a resolution of the Board of Directors of the relevant Co-Issuer or the termination relevant Mortgaged Vessel Guarantor, as the case may be, requesting such release and authorizing an application to the Collateral Trustee therefor;
(ii) an Officers’ Certificate of the Security Documents, will not be deemed to impair relevant Co-Issuer or the Liens on relevant Mortgaged Vessel Guarantor (i.e. the relevant owner or owners of the Collateral in contravention question), as the case may be, dated not more than five days prior to the date of the provisions hereof if application for such release, in each case stating in substance the following:
(1) that either: (A) the Collateral to be released is not Net Proceeds from an Asset Sale and is not being replaced by comparable property, has a book value of less than $1.0 million, and is not necessary for the efficient operation of the Co-Issuers’ and the Restricted Subsidiaries’ remaining property or in the conduct of the business of the Co-Issuers and the Restricted Subsidiaries as conducted immediately prior thereto; or (B) the Collateral to be released is being released in connection with an Asset Sale or an Event of Loss involving such Collateral and the Net Proceeds from such Asset Sale or the Loss Redemption Amount with respect to such Event of Loss, as the case may be, are being or will be delivered to the Collateral Trustee to be held as Trust Monies and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien be applied in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose including, without limitation, Section 12.02 hereof; or (C) the Collateral to be released is Trust Monies representing (w) the Net Proceeds from an impairment Asset Sale involving Collateral which are to be applied to the purchase of one or more Qualified Vessels (which may include a Qualified Vessel owned by a Subsidiary (including a Subsidiary Guarantor) that is not a Mortgaged Vessel Guarantor and Permitted Repairs thereon as provided under Section 4.13(II) or (x) a portion of the Lien on Loss Redemption Amount with respect to an Event of Loss which is to be applied to the purchase of one or more Qualified Vessels (which may include a Qualified Vessel owned by a Subsidiary (including a Subsidiary Guarantor) that is not a Mortgaged Vessel Guarantor) and Permitted Repairs thereon as set forth in Section 4.21 or (y) the net proceeds from the issuance of Additional Notes which are to be applied to the purchase of one or more Qualified Vessels (which may include a Qualified Vessel owned by a Subsidiary (including a Subsidiary Guarantor) that is not a Mortgaged Vessel Guarantor) and Permitted Repairs thereon as permitted by this Indenture or (D) the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant be released constitutes Trust Monies that are being applied to the terms purchase of one or more Qualified Vessels and to make Permitted Repairs thereon in accordance with Section 11.09 or (E) the Indenture Collateral to be released is being released either (x) in connection with an Asset Sale for Qualified Collateral or (y) otherwise upon the receipt of Qualified Collateral (including without limitation in connection with any Security Documentsrefinancing transaction) having a Fair Market Value at least equal to the Collateral to be released, which Qualified Collateral, in either case, is to be pledged to secure the Trustee shallNotes in accordance with Section 11.09.
(2) that no Default has occurred and is continuing;
(3) the Fair Market Value, in the absence opinion of its negligence or willful misconduct the signers, of the property (other than Trust Monies) to be entitled released at the date of such application for release, provided that it shall not be necessary under this clause (3) to receive, and shall be fully protected state the Fair Market Value of any property whose Fair Market Value is certified in relying upon, a certificate of an Independent Appraiser under clause (iii) below; and
(4) that all conditions precedent in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and relating to the release of the Collateral in question have been complied with; and
(iii) If the property to be released is one or more Vessels the certificate of an Independent Appraiser which reflects the Appraised Value of such Vessel or Vessels; and
(iv) One or more Opinions of Counsel which, when considered collectively, shall be substantially to the effect that all conditions precedent, if any, precedent provided in this Indenture and the Security Documents relating to such the release of the Collateral have been satisfiedcomplied with.
(b) If all Liens on In connection with any release, the Co-Issuers and the Mortgaged Vessel Guarantors shall (i) execute, deliver and record or file and obtain such property or assets securing Firstinstruments as the Collateral Trustee may reasonably require, including, without limitation, amendments to the Security Documents and (ii) deliver to the Trustee and the Collateral Trustee such evidence of the satisfaction of the applicable provisions of this Indenture and the Security Documents as the Collateral Trustee may reasonably require.
(c) Notwithstanding any provision of this Section 11.04 to the contrary, the Co-Priority Liens Issuers may obtain a release of (including all commitments and letters of credit thereunderi) Net Proceeds from an Asset Sale involving Collateral that are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens purchase Notes pursuant to a Collateral Sale Offer on the date of such purchase by directing the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company Trustee in writing to cause to be applied such Net Proceeds to such purchase in accordance with Section 4.13(II) or (ii) all or any Guarantor subsequently incurs first-priority Liens portion of a Loss Redemption Amount deposited with the Collateral Trustee in reliance on clause 12 connection with an Event of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement Loss with respect to a Mortgaged Vessel that is required to purchase Notes pursuant to an Event of Loss Offer on the Collateral date of such purchase in favor of the Notes, which, accordance with Section 4.21 in the case of any such subsequent first-priority Lienseither (i) or (ii) above, will be second-priority Liens on by directing the Collateral securing Trustee in writing to cause to be applied such firstamount thereto in accordance with such Sections.
(d) In case a Default or an Event of Default shall have occurred and be continuing, the Co-priority Liens Issuers, while in possession of the Collateral (other than cash and other personal property held by, or required to be deposited or pledged with, the Collateral Trustee hereunder or under any Security Document), may do any of the things enumerated in this Section 11.04 only if the Trustee (upon notice to the same extent provided Collateral Trustee), in its discretion, or the Holders of a majority in aggregate principal amount of the outstanding Notes shall consent to such action, in which event any certificate filed under this Section 11.04 shall omit the statement to the effect that no Default or Event of Default has occurred and is continuing. All cash or Cash Equivalents received by the Security Documents and Collateral Trustee pursuant to this Section 11.04 shall be held by the Collateral Trustee on the terms and conditions behalf of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens Trustee for the benefit of the Holders Holders, as Trust Monies subject to application as provided in this Section 11.04 or in Article Twelve. Any releases of Collateral made in strict compliance with the provisions of this Section 11.04 shall be deemed not to impair the Security Interests created by this Indenture or the Security Documents, as the case may be, in favor of the Notes and Collateral Trustee on behalf of the Trustee and subject to an intercreditor agreement for the benefit of the Holders, in substantially contravention of the same form as the Intercreditor Agreementprovisions of this Indenture.
Appears in 1 contract
Release of Collateral. (ai) Collateral may be released from the Liens created by the Security Documents at any time or from time to time, The Administrative Agent and the Security Documents Lenders hereby direct the Administrative Agent and the Collateral Agent, as the case may be terminatedbe, in each caseto release, in accordance with the provisions of terms hereof, any Lien held by the Administrative Agent or the Collateral Agent , as the case may be, under the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with(and, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released clause (B) below, release the affected Subsidiary from its Guarantee with respect to the Notes, the release guaranty):
(A) against all of the property and assets of such GuarantorCollateral, upon termination hereof as provided in Section 12.15;
(3B) if against any part of the Notes have been defeased pursuant Collateral sold or disposed of by Borrower or any of its Subsidiaries to Article 8 the extent such sale or satisfied and discharged pursuant to Article 12 of this Indenture;
disposition is permitted hereby (4) or permitted pursuant to an amendment hereto, a waiver hereof or waiver in accordance with Article 9 of this Indenturea consent to a transaction otherwise prohibited hereby);
(5C) to the extent required under the Intercreditor Agreement. The release of against any Collateral from acquired by Borrower or any of its Subsidiaries after the terms hereof Closing Date financed with Indebtedness secured by a Lien permitted by Section 8.1(b)(i);
(D) so long as no Default or Event of Default has occurred and is continuing, in the sole discretion of Administrative Agent upon the request of Borrower, against any part of the Security Documents or Collateral with a fair market value of less than $10,000,000 in the release of, aggregate during the term of this Agreement as such fair market value may be certified to Administrative Agent by Borrower in whole or an officer’s certificate acceptable in part, the Liens created by the Security Documents, or the termination form and substance to Administrative Agent; and
(E) against a part of the Security Documents, will Collateral which release does not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without require the consent of the Holders all of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security DocumentsLenders as set forth in Section 12.1(a)(ii), the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that if such release is authorized or permitted consented to by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the CollateralRequired Lenders; provided, however, that if (y) the Company Administrative Agent or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted LiensCollateral Agent, then as the Company and its Subsidiaries will case may be shall not be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, execute any such document on terms which, in its opinion, would expose it to liability or create any obligation or entail any consequence other than the case release of such Liens without recourse or warranty, and (z) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of Borrower or any of its Subsidiaries in respect of) all interests retained by Borrower and/or any of its Subsidiaries, including (without limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(ii) Each of the Lenders hereby directs the Administrative Agent to execute and deliver or file such termination and partial release statements and such other things as are necessary to release Liens to be released pursuant to this Section 12.17 promptly upon the effectiveness of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent release or other representative for such first-priority Liens enter into intercreditor agreements contemplated or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreementpermitted herein.
Appears in 1 contract
Sources: Credit Agreement (Huntsman LLC)
Release of Collateral. (a) Collateral may All or any portion of the Collateral, as applicable, shall be released from the Liens Lien and security interest created by the Security Documents to secure the Notes Obligations, all without delivery of any instrument or performance of any act by any party, at any time or from time to timetime as provided by this Section 10.04. Upon such release, and subject to the Security Documents may be terminated, in each case, in accordance with the provisions terms of the Security Documents and all rights in accordance with this Indenture. Upon the request of applicable Collateral securing Notes Obligations shall revert to the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company Issuers and the Guarantors will Guarantors. The applicable Collateral shall be entitled to a release of assets included in the Collateral released from the Liens securing Lien and security interest created by the Notes, and Security Documents to secure the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Notes Obligations under one or more of the following circumstances:
(1i) in connection with any sale, transfer or other disposition of any Collateral to any Person (other than the Issuers or a Guarantor) to enable the Company extent not prohibited under the terms of this Indenture and the Security Documents (including the covenant described in Section 4.10 hereof), but excluding any transaction subject to Section 5.01 where the recipient is required to become the obligor on the Notes or a Note Guarantee;
(ii) with respect to Collateral pledged by any Restricted Subsidiary to sellparticular Guarantor, exchange or otherwise dispose upon release of any such Guarantor from its Note Guarantee in accordance with the terms of the Collateral as permitted under this Indenture and the Security Documents;
(2iii) in the case of a Guarantor that is released from its Guarantee with respect to Collateral that constitutes Equity Interests, upon the Notes, the release dissolution or liquidation of the property and assets issuer of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of that Equity Interest that is not prohibited by this Indenture;
(4iv) upon (A) satisfaction and discharge of this Indenture pursuant to Article Twelve or (B) legal defeasance or covenant defeasance of the Notes pursuant to Article Eight;
(v) from the first date on which (A) the Notes are rated Investment Grade, and (B) no Default or Event of Default has occurred and is then continuing under this Indenture (the occurrence of the events described in the foregoing clauses (A) and (B) being collectively referred to as an amendment “Investment Grade Rating Event”);
(vi) upon payment in full of principal, interest on the Notes and all other Obligations (other than contingent Obligations in respect of which no claims have been made) under the Notes, the Note Guarantees, this Indenture and the Security Documents;
(vii) the release of Collateral by the Applicable Collateral Agent in connection with a foreclosure upon or waiver exercise of remedies against any Collateral resulting in a sale or disposition thereof, acting on the instructions of the Applicable Authorized Representative in accordance with Article 9 the terms of this Indenture;the Pari Passu Intercreditor Agreement; and
(5viii) in whole or in part, in accordance with Section 9.02(f).
(b) The Notes Collateral Agent and, if necessary, the Trustee shall, at the Issuers’ expense, execute, deliver or acknowledge any necessary or proper instruments of termination, satisfaction or release to evidence and shall do or cause to be done all other acts reasonably necessary to effect, in each case as soon as is reasonably practicable, the extent required under release of any Collateral permitted to be released pursuant to this Indenture and the Intercreditor AgreementSecurity Documents. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in good faith and that it believes to be authorized or within the rights or powers conferred upon it by this Indenture and the Security Documents.
(c) The release of any Collateral from the terms hereof of this Indenture and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral security under this Indenture in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral is released pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Windstream Services, LLC)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indentureor the Intercreditor Agreements. Upon In addition, upon the request of the Company Issuer pursuant to an Officers’ Officer’s Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withmet, the Company Issuer and the Subsidiary Guarantors will be entitled to a the release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize First Lien Collateral Agent and direct the Trustee and (if the Trustee is not then the First Lien Collateral Agent to modify, Agent) shall release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under any one or more of the following circumstances:
(1) to enable the Company Issuer to consummate the sale, transfer or any Restricted Subsidiary other disposition of such property or assets to sell, exchange or otherwise dispose of any of the Collateral as permitted extent not prohibited under this Indenture and the Security DocumentsSection 4.08 hereof;
(2) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in accordance with this Sixth Supplemental Indenture;
(3) in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Sixth Supplemental Indenture, the release of the property and assets of such Subsidiary Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment with the consent of the holders of at least 75% of the aggregate principal amount of the Notes then outstanding and affected thereby and a majority of all Junior Lien Obligations (including the Existing Second Priority Notes) then outstanding and affected thereby (including, without limitation, consents obtained in connection with a tender offer or waiver in accordance with Article 9 of this Indentureexchange offer for, or purchase of, Junior Lien Obligations);
(5) to the extent that such Collateral is released or no longer required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pledged pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, Credit Facilities; or
(6) as described in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedArticle 9 hereof.
(b) If all Liens on such property or assets securing First-Priority Liens For the avoidance of doubt, (including all commitments and letters of credit thereunder1) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens Lien on the Collateral into first-priority Liens created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, and subject to, Section 2.04 of the First Lien Intercreditor Agreement and (2) the Lien on the Collateral; providedShared Receivables Collateral created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, howeverand subject to, Section 2.4(b) of the Additional Receivables Intercreditor Agreement. Any certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an Officer of the Company, except in cases where Section 314(d) requires that if such certificate or opinion be made by an independent engineer, appraiser or other expert.
(c) To the Company extent necessary and for so long as required for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act to file separate financial statements with the SEC (or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 other governmental agency), the Capital Stock of any Subsidiary of the definition of Permitted LiensIssuer (excluding Healthtrust, then the Company Inc. — The Hospital Company, a Delaware corporation and its Subsidiaries will successors and assigns) shall not be required to reinstitute included in the second-priority security arrangement Collateral with respect to the Collateral in favor of Notes and shall not be subject to the Notes, which, in Liens securing the case of any such subsequent first-priority Liens, will be second-priority Notes and the Notes Obligations .
(d) The Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee Subsidiary Guarantees also will be released automatically upon (i) payment in full of the principal of, together with accrued and subject unpaid interest on, and premium, if any, on, the Notes and all other Obligations under this Sixth Supplemental Indenture, the Subsidiary Guarantees and the Security Documents that are due and payable at or prior to an intercreditor agreement the time such principal, together with accrued and unpaid interest, are paid or (ii) a legal defeasance or covenant defeasance under Article 8 hereof or a discharge under Article 13 hereof.
(e) Notwithstanding anything to the contrary herein, the Issuer and its Subsidiaries shall not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they determine, in substantially good faith based on advice of counsel, that under the same form terms of that section and/or any interpretation or guidance as to the Intercreditor Agreementmeaning thereof of the SEC and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) of the Trust Indenture Act is inapplicable to the release of Collateral.
Appears in 1 contract
Release of Collateral. (a) The Liens on the Collateral may be released from securing the Liens created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors Notes will be entitled automatically released with respect to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sellin whole, exchange or otherwise dispose of any upon payment in full of the Collateral as permitted under this Indenture principal of, accrued and unpaid interest and premium, if any, and all other obligations on the Security DocumentsNotes due and payable at such time;
(2) in whole, upon satisfaction and discharge of this Indenture in accordance with the case of a Guarantor that is released from its Guarantee terms hereof with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if in whole, upon a Legal Defeasance or Covenant Defeasance with respect to the Notes have been defeased pursuant to Article 8 VIII;
(4) as to any property or satisfied and discharged pursuant asset constituting Collateral that is sold or otherwise disposed of by any of the Grantors (other than to another Grantor) in a transaction not prohibited by this Indenture at the time of such sale or disposition;
(5) in whole or in part, with the consent of the Holders of the requisite percentage of Notes in accordance Article 12 IX;
(6) in whole, with respect to the Collateral owned by any Guarantor, upon the release of the Guarantee of such Guarantor in accordance with the terms of this Indenture;
(47) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, with respect to any property or asset of any Grantor that is or becomes an Excluded Property under the Liens created by the Security Documents, or the termination terms of the Security Collateral Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and .
(8) to the extent that provided in the Liens on applicable provisions of the Collateral are released, Documents or the Security Documents are terminatedIntercreditor Agreement;
(9) in whole or in part, pursuant with respect to this Indenture any property or asset of any Grantor that is released from the applicable Security Documents. The Trustee and each of Collateral securing the Holders acknowledge that a release of Collateral or a First Lien Obligations in accordance with the terms of the Security Documents First Lien Documents; and
(10) in whole, during any period of time that (a)(i) at least two Rating Agencies have rated the Notes as Investment Grade and this Indenture (ii) no Default has occurred and is continuing, or (b) at least two of Fitch, S&P and ▇▇▇▇▇’▇ have confirmed in writing that the Company’s Credit Rating will not be deemed for any purpose Investment Grade after giving effect to be an impairment the release of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to accordance with the terms of the Indenture or any Security Collateral Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (B. Riley Financial, Inc.)
Release of Collateral. (a) Collateral may be released from the Liens and security interests created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreements and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents, the Intercreditor Agreements and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Subsidiary Guarantees under any one or more of the following circumstances:
(1i) to enable upon consummation of the sale, transfer or other disposition of such Collateral by the Company or a Guarantor to any Restricted Subsidiary Person other than the Company or a Guarantor, to sellthe extent such sale, exchange transfer or otherwise dispose of any of the Collateral as permitted other disposition is not prohibited under this Indenture and the Security DocumentsIndenture;
(2ii) in the case of a Guarantor that is released from its Subsidiary Guarantee pursuant to the terms of this Indenture, with respect to the Notes, the release of the property and other assets of such Guarantor, upon the release of such Guarantor from its Subsidiary Guarantee;
(3iii) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture or (ii) upon the designation by the Company of such issuer of Capital Stock as an Unrestricted Subsidiary under this Indenture;
(4iv) pursuant with respect to any Collateral that becomes an amendment or waiver “Excluded Asset,” upon it becoming an Excluded Asset;
(v) in accordance with Article 9 of this IndentureSection 4.07(b);
(5vi) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention securing the First Lien Credit Agreement Obligations and all other Senior Obligations are released by the applicable Senior Representative for such Senior Obligations (other than any release by, or as a result of, payment of the provisions hereof if and to Senior Obligations), upon the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien such Liens;
(vii) in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the First Lien/Second Lien Intercreditor Agreement; or
(viii) as described under Article 9.
(b) The Liens on the Collateral securing the Notes and the Subsidiary Guarantees also shall automatically and without the need for any further action by any Person be terminated and released:
(i) upon payment in contravention full of the terms principal of, together with accrued and unpaid interest on, the Notes and all other Obligations in respect of the Notes under this Indenture, the Subsidiary Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(ii) upon a legal defeasance or covenant defeasance with respect to the Notes under this Indenture as described below under Sections 8.01(b) and 8.02, or a satisfaction and discharge of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments Indenture as described under Section 8.01(a); or
(iii) pursuant to the Company First Lien/Second Lien Intercreditor Agreement and the Guarantors Security Documents with respect to the Notes.
(c) In addition, any Lien on any Collateral may reasonably request be (i) released or subordinated to evidence the holder of any Lien on such permitted release without the consent Collateral that is created, incurred or assumed pursuant to clauses (iv), (viii)(A) or (xxii) of the Holders definition of “Permitted Liens” to the Notes. In releasing any Collateral pursuant to extent required by the terms of the Indenture obligations secured by such Liens and (ii) subordinated to any Lien on any Mortgaged Property if required under the terms of any lease, easement, right of way or any Security Documentssimilar agreement effecting the Mortgaged Property provided such lease, the Trustee shalleasement, in the absence right of its negligence way or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required similar agreement is permitted by Section 13.044.07.
(d) With respect to any release of Collateral, upon receipt of an Officers’ Certificate and an Opinion of Counsel certifying stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property met and that it is permitted for the Trustee or assets securing First-Priority Liens (including all commitments Notes Collateral Agent to execute and letters of credit thereunder) are released, then deliver the documents requested by the Company in connection with such release and its Subsidiaries will take all steps required any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Trustee and the Notes Collateral Agent shall execute, deliver or acknowledge (at the Company’s expense) such instruments or releases to convert evidence the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents and on shall do or cause to be done (at the terms and conditions Company’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Pari Passu Intercreditor Agreement and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withSecurity Documents, the Company Pari Passu Intercreditor Agreement and this Indenture, the Issuers and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize Pari Passu Notes Obligations; and direct such release shall occur automatically and without further action by the Notes Collateral Agent, the Trustee and Collateral Agent to modify, release and adjust or the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expenseHolders, under any one or more of the following circumstances:
(1i) to enable an Issuer and/or one or more Guarantors to consummate the Company sale, transfer or any Restricted Subsidiary to sell, exchange other disposition (including by the termination of capital leases or otherwise dispose of any the repossession of the leased property in a capital lease by the lessor) of such property or assets (to a Person other than a Person required to ▇▇▇▇▇ ▇ ▇▇▇▇ on such property or asset to the Notes Collateral as permitted Agent under this Indenture and the Security Documents) to the extent consummated in accordance with, or not prohibited by, Section 4.10 hereof;
(2ii) in the case of a Guarantor that is released from its Guarantee with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the Equity Interests in, and property and assets of of, such Guarantor;
(3iii) if all Collateral upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of an Investment Grade Event;
(iv) the release of Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer conducted in accordance with this Indenture;
(4v) (x) if all other liens on such Collateral securing Pari Passu Obligations are released or will be released simultaneously therewith and (y) in the case of ABL Priority Collateral securing Senior ABL Revolving Credit Obligations then outstanding, if the liens on such ABL Priority Collateral are released by the Senior ABL Credit Agreement Collateral Agent or otherwise pursuant to an amendment the Senior ABL Credit Agreement (other than any release by, or waiver in accordance with Article 9 as a result of, payment of this Indenturethe Senior ABL Revolving Credit Obligations);
(5vi) if the release of such Lien is approved, authorized or ratified by the Required Holders,
(vii) to the extent required such property or asset constitutes or becomes an Excluded Asset; or
(viii) as permitted under Article 9 hereof.
(b) The Liens on the Intercreditor Agreement. The release Collateral securing the Notes and the Guarantees also will be released automatically and without further action by the Notes Collateral Agent, the Trustee or the Holders:
(i) upon payment in full of any Collateral from the terms hereof principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(ii) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.02 and Section 8.03 hereof, or a discharge of this Indenture as described under Section 11.01 hereof; or
(iii) pursuant to the Security Documents or the release ofPari Passu Intercreditor Agreement.
(c) Notwithstanding Section 13.02(a)(iii) hereof, in whole if, after any Investment Grade Event, both of the Rating Agencies withdraw their Investment Grade Rating or in partdowngrade the rating assigned to the Notes below an Investment Grade Rating, the Liens created by Issuers and the Security Documents, or Guarantors shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the termination Notes Collateral Agent for its benefit and the benefit of the Security DocumentsTrustee and the Holders of the Notes valid, will not be deemed perfected, first priority security interests (subject to impair the Liens on Permitted Liens) in the Collateral in contravention of within ninety (90) days after such date or as soon as reasonably practicable thereafter to comply with the provisions hereof if Collateral and Guarantee Requirement.
(d) With respect to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a any release of Collateral or a Lien in accordance with the terms Collateral, upon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture, the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments Pari Passu Intercreditor Agreement, as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if anyapplicable, to such release have been satisfied.
met and that it is permitted for the Trustee and/or Notes Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee and the Notes Collateral Agent, as applicable, shall, execute, deliver or acknowledge (bat the Issuers’ expense) If all Liens on such property instruments or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then releases reasonably requested by the Company and its Subsidiaries will take all steps required Issuer to convert evidence the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority LiensCollateral permitted to be released pursuant to this Indenture, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents related thereto or the Pari Passu Intercreditor Agreement and on shall do or cause to be done (at the terms and conditions Issuers’ expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document or in the Pari Passu Intercreditor Agreement to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate, upon which it shall be entitled to conclusively rely.
Appears in 1 contract
Sources: Indenture (Medline Inc.)
Release of Collateral. (a) Collateral may be released from the Liens and security interests created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreements and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents, the Intercreditor Agreements and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company and the Guarantors will be entitled to a the release of property and other assets included in the constituting Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Subsidiary Guarantees under any one or more of the following circumstances:
(1i) to enable upon consummation of the sale, transfer or other disposition of such Collateral by the Company or a Guarantor to any Restricted Subsidiary Person other than the Company or a Guarantor, to sellthe extent such sale, exchange transfer or otherwise dispose of any of the Collateral as permitted other disposition is not prohibited under this Indenture and the Security DocumentsIndenture;
(2ii) in the case of a Guarantor that is released from its Subsidiary Guarantee pursuant to the terms of this Indenture, with respect to the Notes, the release of the property and other assets of such Guarantor, upon the release of such Guarantor from its Subsidiary Guarantee;
(3iii) if with respect to Collateral that is Capital Stock, upon (i) the Notes have been defeased pursuant to Article 8 dissolution or satisfied and discharged pursuant to Article 12 liquidation of the issuer of that Capital Stock that is not prohibited by this Indenture or (ii) upon the designation by the Company of such issuer of Capital Stock as an Unrestricted Subsidiary under this Indenture;
(4iv) pursuant with respect to any Collateral that becomes an amendment or waiver “Excluded Asset,” upon it becoming an Excluded Asset;
(v) in accordance with Article 9 of this IndentureSection 4.07(b);
(5vi) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention securing the Credit Agreement Obligations are released by the First Lien Collateral Agent (other than any release by, or as a result of, payment of the provisions hereof if and to Credit Agreement Obligations), upon the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of such Liens;
(vii) in connection with any enforcement action taken by the Controlling Collateral or a Lien Agent in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the First Lien Intercreditor Agreement; or
(viii) as described under Article 9.
(b) The Liens on the Collateral securing the Notes and the Subsidiary Guarantees also shall automatically and without the need for any further action by any Person be terminated and released:
(i) upon payment in contravention full of the terms principal of, together with accrued and unpaid interest on, the Notes and all other Obligations in respect of the Notes under this Indenture, the Subsidiary Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(ii) upon a legal defeasance or covenant defeasance with respect to the Notes under this Indenture as described below under Sections 8.01(b) and 8.02, or a satisfaction and discharge of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments Indenture as described under Section 8.01(a); or
(iii) pursuant to the Company First Lien Intercreditor Agreement and the Guarantors Security Documents with respect to the Notes.
(c) In addition, any Lien on any Collateral may reasonably request be (i) released or subordinated to evidence the holder of any Lien on such permitted release without the consent Collateral that is created, incurred or assumed pursuant to clauses (iv), (viii)(A) or (xxii) of the Holders definition of “Permitted Liens” to the Notes. In releasing any Collateral pursuant to extent required by the terms of the Indenture obligations secured by such Liens and (ii) subordinated to any Lien on any Mortgaged Property if required under the terms of any lease, easement, right of way or any Security Documentssimilar agreement effecting the Mortgaged Property provided such lease, the Trustee shalleasement, in the absence right of its negligence way or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required similar agreement is permitted by Section 13.044.07.
(d) With respect to any release of Collateral, upon receipt of an Officers’ Certificate and an Opinion of Counsel certifying stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property met and that it is permitted for the Trustee or assets securing First-Priority Liens (including all commitments Notes Collateral Agent to execute and letters of credit thereunder) are released, then deliver the documents requested by the Company in connection with such release and its Subsidiaries will take all steps required any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Trustee and the Notes Collateral Agent shall execute, deliver or acknowledge (at the Company’s expense) such instruments or releases to convert evidence the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case release of any such subsequent first-priority Liens, will Collateral permitted to be second-priority Liens on the Collateral securing such first-priority Liens released pursuant to the same extent provided by this Indenture or the Security Documents and on shall do or cause to be done (at the terms and conditions Company’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and subject the Notes Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officers’ Certificate.
Appears in 1 contract
Release of Collateral. (a) Subject to subsections (b) and (c) of this Section 11.03, Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the ABL Intercreditor Agreement and in accordance with this Indenturethe First Lien Intercreditor Agreement or as provided hereby. Upon the request of the Company Issuer pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withmet, the Company Issuer and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize First Lien Collateral Agent and direct the Trustee and (if the Trustee is not then the First Lien Collateral Agent to modify, Agent) shall release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under one or more of the following circumstances:
(1) [Reserved.]
(2) to enable the Company Issuer or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security DocumentsSection 4.06;
(23) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(34) if the Notes have been discharged or defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this IndentureSection 8.01;
(45) in the case of a Guarantor making a Permitted Transfer to any Restricted Subsidiary of Hexion; provided that such Permitted Transfer is permitted by clause (y) of the last paragraph of Article 5;
(6) in respect of the property and assets of a Restricted Subsidiary that is a Guarantor, upon the designation of such Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.04 and the definition of “Unrestricted Subsidiary” under Section 1.01;
(7) in respect of the property and assets of a Guarantor that at any time is not subject to a Lien securing any other First Priority Lien Obligations at such time (provided that if such property and assets is subsequently subject to a Lien securing any other First Priority Lien Obligations (other than Excluded Assets), such property and assets shall subsequently constitute Collateral hereunder) other than (x) if such release is in connection with a release or discharge by or as a result of payment in respect of the Credit Agreement or (y) if such release is due to a release of Liens by lenders under the Credit Agreement, at any time that Indebtedness under the Credit Agreement does not constitute a majority of the aggregate principal amount of Indebtedness constituting First Priority Lien Obligations outstanding at such time;
(8) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;; or
(59) in respect of any property and assets of the Issuer or a Guarantor that would constitute ABL Priority Collateral but is at such time not subject to a Lien securing ABL Obligations, other than any assets or property that cease to be subject to a Lien securing ABL Obligations in connection with a release or discharge by or as a result of payment in full and termination of the extent required under ABL Facility; provided that if such property and assets are subsequently subject to a Lien securing ABL Obligations (other than Excluded Assets), such property and assets shall subsequently constitute Collateral hereunder. Upon receipt of such Officers’ Certificate and any necessary or proper instruments of termination, satisfaction or release prepared by the Intercreditor Agreement. The Issuer, the First Lien Collateral Agent shall execute, deliver or acknowledge such instruments or releases to evidence the release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not permitted to be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, released pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of or the First Lien on Intercreditor Agreement or the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedABL Intercreditor Agreement.
(b) If all Liens on Except as otherwise provided in the First Lien Intercreditor Agreement or the ABL Intercreditor Agreement, no Collateral may be released from the Lien and security interest created by the Security Documents unless the Officers’ Certificate required by this Section 11.03, dated not more than five days prior to the date of the application for such property or assets securing First-Priority Liens release, has been delivered to the First Lien Collateral Agent and the Trustee (including all commitments and letters of credit thereunder) are released, if the Trustee is not then the Company First Lien Collateral Agent).
(c) At any time when a Default or Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee (if not then the First Lien Collateral Agent) has delivered a notice of acceleration to the First Lien Collateral Agent, no release of Collateral pursuant to the provisions of this Indenture or the Security Documents will be effective as against the Holders, except as otherwise provided in the First Lien Intercreditor Agreement or the ABL Intercreditor Agreement.
(d) Any certificate or opinion required by Section 314(d) of the TIA may be made by an Officer of the Issuer, except in cases where Section 314(d) requires that such certificate or opinion be made by an independent engineer, appraiser or other expert.
(e) Notwithstanding anything to the contrary herein, the Issuer, Hexion and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will not be required to reinstitute comply with all or any portion of Section 314(d) of the second-priority security arrangement with respect TIA if they determine, in good faith based on advice of counsel, that under the terms of that section or any interpretation or guidance as to the Collateral in favor meaning thereof by the SEC and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens TIA is inapplicable to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreementreleased Collateral.
Appears in 1 contract
Sources: Indenture (Hexion Inc.)
Release of Collateral. (a) Liens on Collateral may securing the Notes and the Guarantees (other than the Intercompany Loans) shall, subject to Section 11.9(d) below, be automatically and unconditionally released:
(i) in connection with any sale or other disposition of Collateral if the sale or other disposition does not violate Section 4.12(a) (Asset Sales) and, if the Collateral is stock of a Guarantor, in connection with any merger, consolidation, amalgamation or other combination in which such Guarantor is not the surviving corporation if the transaction does not violate Section 4.20 (Merger, Consolidation or Sale of Assets);
(ii) if the Collateral is an asset of a Guarantor (or one of its Subsidiaries) that is to be designated as an Unrestricted Subsidiary, upon designation of the Guarantor as an Unrestricted Subsidiary in accordance with Section 4.25 (Designation of Restricted and Unrestricted Subsidiaries);
(iii) if the Collateral is an asset of a Guarantor (or one of its Subsidiaries) that is to be released from its Guarantee pursuant to the Liens created by terms of this Indenture, upon release of the Security Documents at any time or Guarantor from time to time, and the Security Documents may be terminated, in each case, its Guarantee;
(iv) in accordance with the provisions of the Security Documents and the Intercreditor Agreement (as in effect on the Effective Date or as amended, supplemented or otherwise modified after the Effective Date) upon the occurrence of an enforcement action;
(v) upon legal defeasance or satisfaction and discharge of the Notes in accordance with this Section 8.2 (Legal Defeasance and Discharge) or Section 8.5 (Satisfaction and Discharge of the Indenture. Upon );
(vi) if the Collateral is a Specified Bank Account, upon the written request of the Parent, if the Parent certifies in such request that as of the last day of the then most recent fiscal quarter ending after the Effective Date, such account did not have at least $10.0 million (or, if in a currency other than U.S. dollars, the U.S. dollar equivalent thereof) in deposits; and
(vii) as described in Article IX (Amendments, Supplements and Waiver).
(b) The Security Agents are authorized to release and each Holder, by accepting a Note, is deemed to authorize the Security Agents to release (and the Security Agents will, at the request of the Company pursuant Parent or Issuer, release) the security interest in all or any portion of the Collateral in connection with the granting of any Permitted Collateral Lien as contemplated in Section 4.9 (Limitation on Liens). The Issuer or the relevant Guarantor shall re-grant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company Security Agents or the Trustee and the Guarantors will be entitled to Security Agents, immediately after such Permitted Collateral Lien is granted, a security interest in such released Collateral; provided that: (i) the release and re-taking of assets included any security interest in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of this Section 11.9(b) shall only be undertaken to the extent necessary, as determined in good faith by the Issuer or the relevant Guarantor (which determination shall be conclusive) to be required to grant the Permitted Collateral Lien; and (ii) the Issuer or the relevant Guarantor shall provide the Security Documents Agents or the Trustee with an Opinion of Counsel regarding the validity and this Indenture will not enforceability of any security interest securing the Notes that is re-taken, which opinion may be deemed for any purpose subject to exceptions, limitations and exclusions reasonably determined by such counsel to be an impairment necessary or appropriate, including in light of applicable law.
(c) The Trustee and/or the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release Security Agents are hereby authorized, without the consent of any Holder, to take all necessary actions to effectuate any release in accordance with this Section 11.9. The Trustee and/or the Holders Security Agents are hereby authorized, without the consent of the Notes. In releasing any Collateral pursuant Holder, to the terms take all necessary actions to effectuate any amendment, extension, renewal, restatement, supplement, modification or replacement of the Indenture (and release or cancel or otherwise terminate any Security Documents, the Trustee shall, Document replaced or restated pursuant thereto) in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by compliance with Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
4.24 (b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or and from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon Notwithstanding anything to the request of contrary in the Company pursuant to an Officers’ Certificate Security Documents and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withthis Indenture, the Company super-priority Liens on the DIP Collateral and the Guarantors first priority Liens on the Exit Collateral, as applicable, will be entitled automatically released with respect to a release of assets included in the Collateral from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, First Lien Notes Obligations under any one or more of the following circumstances:
(1) to enable any Specified Collateral Party to consummate the Company sale, transfer or any Restricted Subsidiary to sell, exchange other disposition (including by the termination of capital leases or otherwise dispose of any the repossession of the Collateral as leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Issuer or a Subsidiary of the Issuer) to the extent permitted under this Indenture and by Section 3.5 or in connection with the Security DocumentsStaggered Emergence;
(2) in the case of a Guarantor Specified Collateral Party that is released from its Guarantee pledge of Collateral with respect to the NotesNotes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(3) if upon the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 occurrence of this Indenturean Investment Grade Event;
(4) pursuant to the release of Collateral Excess Proceeds or Excess Proceeds that remain unexpended after the conclusion of an amendment Asset Disposition Offer or waiver a Collateral Asset Disposition Offer conducted in accordance with Article 9 of this Indenture;
(5) as described under Article IX hereof;
(6) if the property subject to such Lien becomes Excluded Asset;
(7) to release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Security Document to the holder of any Lien on such property that is a Permitted Lien under clauses (9) or (12) (in the case of clause (12), upon the reasonable request of the Issuer, to the extent required under by the Intercreditor Agreement. The release terms of the agreements governing such Permitted Lien) of the definition thereof;
(8) if any Specified Collateral Party ceases to be a Restricted Subsidiary, or becomes excluded from the terms hereof and Collateral, in each case as a result of a transaction not prohibited hereunder or designation permitted hereunder; or
(9) solely with respect to any DIP Collateral that does not constitute Exit Collateral, the occurrence of the Conversion Date.
(b) Notwithstanding anything to the contrary in the Security Documents or the release ofand this Indenture, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral securing the Notes and the Note Guarantees also will be automatically released:
(1) upon payment in contravention full of the provisions hereof if principal of, together with accrued and to unpaid interest on, the extent that Notes and all other Obligations under this Indenture, the Liens on Collateral are released, or Note Guarantees and the Security Documents that are terminateddue and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(2) upon a Legal Defeasance or Covenant Defeasance under this Indenture as described under Section 8.2 and Section 8.3 hereof, or a discharge of this Indenture as described under Section 11.1 hereof;
(3) pursuant to the Security Documents; or
(4) subject to Section 9.2, if the release of such Lien is approved, authorized or ratified in writing by Holders of at least a majority in principal amount of the Notes outstanding at such time.
(c) Notwithstanding anything contained herein to the contrary, upon request by the Collateral Agent at any time, the Holders shall confirm in writing the Collateral Agent’s irrevocable authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document; provided that the absence of such confirmation shall not affect in any way the validity of the automatic releases of security interest or Guarantee contemplated by this Indenture or the Collateral Agent obligations to comply with the provisions of the immediately following sentence. The Collateral Agent shall, at the Issuer’s expense and upon receipt of an Officer’s Certificate and Opinion of Counsel, execute and deliver to the Issuer or the applicable Grantor such documents and such amendments, modifications or supplements to any Security Documents, in each case as the Issuer or such Guarantor may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to evidence the release of such Grantor from its obligations under the Guarantee, in each case in accordance with the terms of this Indenture and applicable Security Document.
(d) Notwithstanding Section 12.2(a)(3), if, after any Investment Grade Event, both of the Rating Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating, the Issuer and the Grantors shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes valid, perfected, first priority security interests (subject to Permitted Liens) in the Collateral within ninety (90) days after such Reversion Date or as soon as reasonably practicable thereafter.
(e) With respect to any release of Collateral, upon receipt of an Officer’s Certificate stating that all conditions precedent under this Indenture and the Security Documents, as applicable, to such release have been met, the Trustee (if applicable) and the Collateral Agent shall, execute, deliver or acknowledge (at the Issuer’s expense) any instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose shall do or cause to be an impairment done (at the Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the Lien on Trustee nor the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent instrument of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture release, satisfaction or any Security Documentstermination, the Trustee shallunless and until it receives such Officer’s Certificate, in the absence of its negligence or willful misconduct upon which it shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfiedconclusively rely.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Release of Collateral. (a) Subject to Section 10.03(b) hereof, Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents Documents, the Intercreditor Agreement and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company The Issuer and the Guarantors will be entitled to a release of property and other assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize Trustee (subject to its receipt of an Officers’ Certificate and direct Opinion of Counsel as provided below) shall release, or instruct the Trustee and Collateral Agent to modifyrelease, release and adjust as applicable, the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the CompanyIssuer’s sole cost and expense, under one or more of the following circumstances:
(1) upon the Discharge of First Lien Obligations and concurrent release of all other Liens on such property or assets securing First Lien Obligations (including all commitments and letters of credit thereunder); provided, however, that if the Issuer or any Guarantor subsequently incurs First Lien Obligations that are secured by Liens on property or assets of the Issuer or any Guarantor of the type constituting the Collateral and the related Liens are incurred in reliance on clauses 6(i) or 33(b) of the definition of “Permitted Liens,” then the Issuer and its Restricted Subsidiaries will be required to reinstitute the security arrangements with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent First Lien Obligations, will be second priority Liens on the Collateral securing such First Lien Obligations to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such First Lien Obligations, with the second priority Lien held either by the administrative agent, collateral agent or other representative for such First Lien Obligations or by a collateral agent or other representative designated by the Issuer to hold the second priority Liens for the benefit of the Holders of the Notes and subject to an intercreditor agreement that provides the administrative agent or collateral agent substantially the same rights and powers as afforded under the Intercreditor Agreement;
(2) to enable the Company Issuer or any Restricted Subsidiary Guarantor to sell, exchange or otherwise dispose of any of the Collateral as permitted to the extent not prohibited under Section 4.10;
(3) to release Excess Proceeds to the Issuer that remain unexpended after the conclusion of an Asset Sale Offer conducted in accordance with this Indenture and not required to be made part of the Security DocumentsCollateral;
(24) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(45) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;hereof; or
(56) if the Notes have been discharged or defeased pursuant to Article 8 or Article 12 hereof. If an Event of Default under the Indenture exists on the date of Discharge of First Lien Obligations, the second priority Liens on the Collateral securing the Notes will not be released, except to the extent required under the Intercreditor Agreement. The release Collateral or any portion thereof was disposed of any in order to repay the First Lien Obligations secured by the Collateral, and thereafter the Collateral from Agent (or another designated representative acting at the terms hereof and direction of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination Holders of a majority of outstanding principal amount of the Security DocumentsNotes and other Permitted Second Lien Obligations) will have the right to direct the Collateral Agent to foreclose upon the Collateral (but in such event, will not be deemed to impair the Liens on the Collateral in contravention securing the Notes will be released when such Event of the provisions hereof if Default and all other Events of Default under this Indenture cease to exist but will be reinstituted upon any subsequent incurrence of First Lien Obligations to the extent that provided in the Liens on Collateral are released, or the Security Documents are terminated, pursuant proviso to clause (a)(1) of this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a Section 10.03).
(b) With respect to any release of Collateral or a Lien in accordance with the terms Collateral, upon receipt of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying each stating that such release is authorized or permitted by all conditions precedent under this Indenture and the Security Documents and that all conditions precedent, if any, the Intercreditor Agreement to such release have been satisfiedmet and that it is proper for the Trustee or Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release, and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee shall, or shall cause the Collateral Agent to, execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents or the Intercreditor Agreement. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officers’ Certificate or Opinion of Counsel, and the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until (i) it receives such Officers’ Certificate and Opinion of Counsel or (ii) the Intercreditor Agreement expressly provides for automatic release of Collateral under this Indenture with no further action required by the Trustee or the Collateral Agent.
(bc) If all Liens on To the extent that Rule 3-16 of Regulation S-X under the Securities Act requires or would require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, that would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Subsidiary of the Issuer due to the fact that such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are releasedSubsidiary’s Equity Interests secure the Notes, then the Company Equity Interests of such Subsidiary will automatically be deemed not to be part of the Collateral securing the Notes but only to the extent necessary to not be subject to such requirement and its Subsidiaries will take all steps only for so long as required to convert not be subject to such requirement. In such event, the Holders’ second-priority Liens on Security Documents may be amended or modified, without the Collateral into first-priority Liens on the Collateral; providedconsent of any Holder of such Notes, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral extent necessary to release the security interests in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens Collateral Agent on the Collateral securing shares of Equity Interests of such firstSubsidiary that are so deemed to no longer constitute part of the Collateral, all at the written request and certification by the Issuer, upon which the Trustee may conclusively rely. In the event that Rule 3-priority Liens 16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, that would permit) such Subsidiary’s Equity Interests to secure the same extent provided by Notes in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Equity Interests of such Subsidiary will automatically be deemed to be a part of the Collateral. In such event, the Security Documents and on may be amended or modified, without the terms and conditions consent of any Holder of such Notes, to the security documents relating extent necessary to subject such first-priority Liens, with Equity Interests to the second-priority Lien held either by Liens under the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement in substantially the same form as the Intercreditor AgreementSecurity Documents.
Appears in 1 contract
Sources: Indenture (American Media Inc)
Release of Collateral. (a) Subject to Section 11.03(b) and 11.04 hereof, Collateral may be released from the Liens Lien and security interest created by the Security Documents at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied withDocuments, the Intercreditor Agreement or as provided hereby. The Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct Trustee shall release, or instruct the Trustee and Notes Collateral Agent to modifyrelease, release and adjust as applicable, the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, same from such Liens at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted to the extent not prohibited under this Indenture and the Security DocumentsSection 4.06;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;; or
(54) if the Notes have been defeased pursuant to Section 8.01. The second-priority lien on the ABL Collateral securing the Notes will terminate and be released automatically if the first-priority liens on the ABL Collateral are released by the Bank Collateral Agent (unless, at the time of such release of such first-priority liens, an Event of Default shall have occurred and be continuing under this Indenture). Notwithstanding the existence of an Event of Default, the second-priority lien on the ABL Collateral securing the Notes shall also terminate and be released automatically to the extent required the first-priority liens on the ABL Collateral are released by the Bank Collateral Agent in connection with a sale, transfer or disposition of ABL Collateral that is either not prohibited under the Intercreditor AgreementIndenture or occurs in connection with the foreclosure of, or other exercise of remedies with respect to, such ABL Collateral by the Bank Collateral Agent (except with respect to any proceeds of such sale, transfer or disposition that remain after satisfaction in full of the Lenders Debt). The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens liens on the Collateral in contravention of securing the provisions hereof if and to the extent Notes that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral otherwise would have been released pursuant to the terms first sentence of the this paragraph will be released when such Event of Default and all other Events of Default under this Indenture or any Security Documents, the Trustee shall, in the absence cease to exist. Upon receipt of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this all conditions precedent under the Indenture and the Security Documents and that all conditions precedentDocuments, if any, to such release have been satisfiedmet and any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Notes Collateral Agent shall execute, deliver or acknowledge (at the Company’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents or the Intercreditor Agreement.
(b) If all Liens on such property At any time when a Default or assets securing First-Priority Liens Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (including all commitments whether by declaration or otherwise) and letters of credit thereunder) are released, the Trustee (if not then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Notes Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 Agent) has delivered a notice of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect acceleration to the Notes Collateral in favor Agent, no release of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens pursuant to the same extent provided by provisions of this Indenture or the Security Documents and on will be effective as against the terms and conditions of the security documents relating to such first-priority LiensHolders, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement except as otherwise provided in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Metals USA Plates & Shapes Southcentral, Inc.)
Release of Collateral. The Collateral Agent’s Liens upon the Collateral will no longer secure the Notes and Guarantees outstanding under this Indenture or any other Obligations under this Indenture (a) Collateral may be released from including the Liens created by the Security Documents at any time or from time to timeNote Obligations), and the Security Documents may be terminated, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstances:
(1) to enable the Company or any Restricted Subsidiary to sell, exchange or otherwise dispose of any of the Collateral as permitted under this Indenture and the Security Documents;
(2) in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant to the terms of the Indenture or any Security Documents, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing First-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent first-priority Liens, will be second-priority Liens on the Collateral securing such first-priority Liens to the same extent provided by the Security Documents and on the terms and conditions of the security documents relating to such first-priority Liens, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit right of the Holders of the Notes and such Obligations (including the Note Obligations) to the benefits and proceeds of the Collateral Agent’s Liens on the Collateral will automatically terminate and be discharged:
(i) in whole, as to all property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances;
(ii) in whole, as to all property subject to such Liens, upon payment or satisfaction in full in cash of the principal of, accrued and unpaid interest and premium, if any, and such other amounts due on the Notes and the payment in full in cash of all other Note Obligations; or satisfaction and discharge of this Indenture or Covenant Defeasance, in each case, as set forth in Article 3 hereof;
(iii) in part, as to any property that (A) is sold, transferred or otherwise disposed of by the Company or one of the Guarantors in a transaction permitted under Section 4.11 and not otherwise prohibited by this Indenture, at the time of such Disposition, to the extent of the interest Disposed of; provided, in each case, that any products or proceeds received by the Company or a Guarantor in respect of any such Collateral shall continue to constitute Collateral to the extent required by this Indenture and the Note Security Documents, or (B) is owned or at any time acquired by a Guarantor that has been released from its Guarantee (and any guarantee of other Note Obligations), concurrently with the release of such Guarantee (and any guarantee of other Note Obligations);
(iv) as to property that constitutes all or substantially all of the Collateral securing the Note Obligations, with the consent of the Holders of 66-2/3% of the aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(v) as to property that constitutes less than all or substantially all of the Collateral securing the Note Obligations, with the consent of the Holders of a majority of the aggregate principal amount of the Notes then outstanding(including, without limitation, consents obtained in connection with a tender offer or exchange offer for, purchase of, the Notes);
(vi) as to Collateral which becomes Excluded Property; and
(vii) as ordered pursuant to applicable law under a final and nonappealable order or judgement of a court of competent jurisdiction. Upon receipt of an Officer’s Certificate and Opinion of Counsel certifying that all conditions precedent and covenants under this Indenture, including the specific conditions precedent set forth in any of sub-paragraphs (i) through (vii) above, as applicable, and the Note Documents, if any, relating to such release have been complied with, and any necessary or proper instruments of termination, satisfaction or release prepared by the Company, the Trustee shall, or shall cause the Collateral Agent to, execute, deliver or acknowledge (at the Company’s expense), without recourse, representation or warranty of any kind (express or implied), such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Note Documents. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in good faith in reliance upon any such Officer’s Certificate and Opinion of Counsel; and notwithstanding any term hereof or in any Note Document to the contrary, the Trustee and subject the Collateral Agent shall not be under any obligation to an intercreditor agreement in substantially the same form as the Intercreditor Agreementrelease any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
Appears in 1 contract
Release of Collateral. (a) Collateral may be released from Subject to Section 13.2 hereof, the Liens created by on the Security Documents at any time Collateral will be released, or from time subordinations of Liens on the Collateral will be granted, with respect to time, the Notes and the Security Documents may be terminatedSubsidiary Guarantees, in each case, in accordance with the provisions of the Security Documents and in accordance with this Indenture. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of assets included in the Collateral from the Liens securing the Notes, and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, under one or more of the following circumstancesas applicable:
(1) in whole, upon payment in full of the principal of, accrued and unpaid interest, and premium, if any, on the Notes and payment in full of all other obligations under this Indenture, the Subsidiary Guarantees and the Security Documents that are due and payable at or prior to enable the Company time of such principal together with accrued and unpaid interest;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth under Article VIII; or
(b) a Legal Defeasance or Covenant Defeasance of this Indenture under Article VIII;
(3) in part, as to any Restricted Subsidiary to sell, exchange asset constituting Collateral (A) that is sold or otherwise dispose disposed of by the Issuer or any of the Collateral Subsidiary Guarantors in a transaction permitted by the First-Lien Documents (whether or not an “event of default” under the First-Lien Documents or any Second-Lien Notes Documents has occurred and is continuing) if all other Liens on that asset securing the First-Lien Obligations (including all commitments thereunder) are released or (B) that is sold or otherwise disposed of by the Issuer or any Subsidiary Guarantor in accordance with, and as permitted under expressly provided for in, this Indenture Indenture, the Intercreditor Agreement and the Security Documents;
(24) in whole, as to the ATP Titan drilling and production platform and related assets, if such assets are contributed to an Infrastructure Subsidiary in connection with its designation as an Unrestricted Subsidiary in accordance with the definition thereof;
(5) as set forth under Article IX as to property that constitutes less than all or substantially all of the Collateral, with the consent of Holders of at least a majority in aggregate principal amount of the Notes then outstanding, voting as one class (or, in the case of a Guarantor that is released from its Guarantee with respect to the Notes, the release of the property and assets of such Guarantor;
(3) if the Notes have been defeased pursuant to Article 8 all or satisfied and discharged pursuant to Article 12 of this Indenture;
(4) pursuant to an amendment or waiver in accordance with Article 9 of this Indenture;
(5) to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof and substantially all of the Security Documents or the release ofCollateral, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of at least 75% in aggregate principal amount of the Notes then outstanding, voting as one class), including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes; and
(6) with respect to assets of a Subsidiary Guarantor upon release of such Subsidiary Guarantor from its Subsidiary Guarantee as set forth under Article XII. In releasing any Collateral pursuant to On the terms date of the Indenture or any Security DocumentsDischarge of First-Lien Obligations, the Trustee shall, in the absence of its negligence or willful misconduct be entitled to receive, and shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.
(b) If all Liens on such property or assets securing FirstSecond-Priority Liens (including all commitments and letters of credit thereunder) are released, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into firstsecuring the Notes will not be released, except to the extent the Collateral or any portion thereof was disposed of in order to repay the First-priority Lien Obligations secured by the Collateral, and thereafter the Collateral Agent (or another designated representative acting at the direction of the Holders of a majority of outstanding principal amount of the Notes) will have the right (upon the occurrence of an Event of Default) to foreclose upon the Collateral (but in such event, the Liens on the CollateralCollateral securing the Notes will be released when such Event of Default and all other Events of Default under this Indenture cease to exist); provided, however, that if the Company Issuer or any Subsidiary Guarantor subsequently incurs firstFirst-priority Lien Obligations that are secured by Liens on property or assets of the Issuer or any Subsidiary Guarantor of the type constituting the Collateral and the related Liens are incurred in reliance on clause 12 (1) of the definition of Permitted Liens, then the Company Issuer and its Subsidiaries the Subsidiary Guarantors will be required to reinstitute the second-priority security arrangement arrangements and Intercreditor Agreement with respect to the Collateral in favor of the Notes, which, in the case of any such subsequent firstFirst-priority LiensLien Obligations, will be secondSecond-priority Priority Liens on the Collateral securing such firstFirst-priority Liens Lien Obligations to the same extent provided by the Security Documents and Intercreditor Agreement and on the terms and conditions of the security documents relating to such firstFirst-priority LiensLien Obligations, with the secondSecond-priority Priority Lien held either by the administrative agent, collateral agent or other representative for such firstFirst-priority Liens Lien Obligations or by a collateral agent or other representative designated by the Company Issuer to hold the secondSecond-priority Priority Liens for the benefit of the Holders holders of the Notes and the Trustee and subject to an intercreditor agreement in that provides the administrative agent or collateral agent substantially the same form rights and powers as afforded under the Intercreditor Agreement. In accordance with the Intercreditor Agreement and upon compliance by the Issuer or any Subsidiary Guarantor, as the case may be, with the conditions precedent required by this Indenture, the Trustee or the Collateral Agent shall promptly cause to be released and reconveyed to the Issuer, or the Subsidiary Guarantor, as the case may be, the released Collateral. Prior to each proposed release, the Issuer and each Subsidiary Guarantor shall furnish to the Trustee and the Collateral Agent all certificates, opinions and documents required by this Indenture, the Security Documents and the TIA.
Appears in 1 contract
Sources: Indenture (Atp Oil & Gas Corp)
Release of Collateral. (a) Collateral may be released from the Liens Lien and security interest created by the Security Documents to secure the Notes and obligations under this Indenture at any time or from time to time, and the Security Documents may be terminated, in each case, time in accordance with the provisions of the Intercreditor Agreement or as provided hereby or in the Security Documents and in accordance with this IndentureDocuments. Upon the request of the Company pursuant to an Officers’ Certificate and an Opinion of Counsel certifying that all covenants and conditions precedent hereunder have been complied with, the Company and the Guarantors will be entitled to a release of The applicable assets included in the Collateral shall be automatically released from the Liens securing the Notes, Notes and the Holders hereby irrevocably authorize and direct the Trustee and Collateral Agent to modify, release and adjust the Liens, to the extent provided for herein and in the Intercreditor Agreement, including, without limitation, at the Company’s sole cost and expense, Subsidiary Guarantees under any one or more of the following circumstances:
(1) to enable the Company Issuer or any Restricted Subsidiary Guarantor to sellconsummate the disposition of such property or assets to the extent not prohibited under Section 4.06; provided that upon giving pro forma effect to such disposition (other than an Event of Loss) and any related transactions, exchange the Loan-to-Value Ratio shall either be (x) equal to or otherwise dispose of any of less than the Collateral as permitted under this Indenture and the Security DocumentsLoan-to-Value Ratio immediately prior to giving effect to such disposition or (y) no greater than 75%;
(2) to release Excess Proceeds and Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in the case of a Guarantor that is released from its Guarantee accordance with this Indenture;
(3) in respect to the Notes, the release of the property and assets of a Subsidiary Guarantor, upon the designation of such Guarantor;
Subsidiary Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.04 and the definition of “Unrestricted Subsidiary”; provided that upon giving pro forma effect to such designation and any related transactions, the Loan-to-Value Ratio shall either be (3x) if equal to or less than the Notes have been defeased pursuant Loan-to-Value Ratio immediately prior to Article 8 giving effect to such designation or satisfied and discharged pursuant to Article 12 of this Indenture(y) no greater than 75%;
(4) pursuant in respect of the property and assets of a Subsidiary Guarantor, upon the release or discharge of the guarantee by such Subsidiary Guarantor of the Credit Agreement or other Indebtedness or the guarantee of any other Indebtedness that resulted in the obligation to an amendment become a Subsidiary Guarantor (other than a release upon the Discharge of Senior Lender Claims); provided that upon giving pro forma effect to such release or waiver in accordance with Article 9 of this Indenturedischarge and any related transactions, the Loan-to-Value Ratio shall either be (x) equal to or less than the Loan-to-Value Ratio immediately prior to giving effect to such release or discharge or (y) no greater than 75%;
(5) upon the disposition of such property or assets during the existence of any event of default under (and as defined in) the Credit Agreement to the extent required under the Intercreditor Agreement. The release of any Collateral from the terms hereof First Lien Agent has consented to such sale, transfer or disposition and of the Security Documents or the release of, in whole or in part, the Liens created by the Security Documents, or the termination of the Security Documents, will not be deemed to impair the Liens on the Collateral in contravention of the provisions hereof if and to the extent that the Liens on Collateral are released, or the Security Documents are terminated, pursuant to this Indenture or the applicable Security Documents. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in accordance with the terms of the Security Documents and this Indenture will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture. The Collateral Agent shall promptly execute and deliver such documents and instruments as the Company and the Guarantors may reasonably request to evidence any such permitted release without the consent of the Holders of the Notes. In releasing any Collateral pursuant subject to the terms of the Indenture or Intercreditor Agreement;
(6) in respect of the Liens against any Security Documents, the Trustee shallSubsidiary Guarantor, in connection with a Permitted Reflagging Transaction (for the absence avoidance of its negligence or willful misconduct be entitled doubt, such terminations shall not in any way extend to receive, and shall be fully protected in relying upon, in addition any property transferred to the documents required by Section 13.04, an Officers’ Certificate and an Opinion of Counsel certifying that such release is authorized or permitted by this Indenture and the Security Documents and that all conditions precedent, if any, to such release have been satisfied.transferee in a Permitted Reflagging Transaction);
(b7) If all any Liens against a Liquidating Entity or other Person in connection with a liquidation, dissolution or other transaction permitted under Section 5.01 in which such Person ceases to exist (but for the avoidance of doubt, such termination shall not in any way extend to any property otherwise constituting Collateral);
(8) the Liens on such property or assets securing First-Priority Liens Lien Obligations are otherwise released as permitted by the Credit Agreement (including all commitments other than a release upon the Discharge of Senior Lender Claims);
(9) as described under Article IX. In the event that the aggregate principal amounts of the loans outstanding under the Credit Agreement is less than 15% of the sum of such amount and letters the aggregate amount of credit thereunder) are releasedthe Notes outstanding, then the Company and its Subsidiaries will take all steps required to convert the Holders’ second-priority Liens on the Collateral into first-priority Liens on the Collateral; provided, however, that if the Company any release or any Guarantor subsequently incurs first-priority Liens in reliance on clause 12 of the definition of Permitted Liens, then the Company and its Subsidiaries will be required to reinstitute the second-priority security arrangement discharge with respect to the Collateral in favor shall require consent of the Notesholders of First-Priority Lien Obligations and the Notes representing in the aggregate more than 50% of the sum of (a) aggregate principal amount of loan outstanding under the Credit Agreement and (b) the aggregate principal amount of the Notes outstanding; provided that no such consent shall be required for any such release or discharge in connection with a transaction (x) otherwise permitted under the Credit Agreement and this Indenture, which(y) pursuant to clause (5) above or (z) in connection with the enforcement or exercise of any rights or remedies with respect to the Collateral. In addition, the security interests granted pursuant to the Security Documents securing the Notes and the Subsidiary Guarantees shall automatically terminate and/or be released all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the applicable Subsidiary Guarantors, as of the date (i) upon all the Obligations under the Notes and this Indenture (other than contingent or unliquidated obligations or liabilities not then due) have been paid in full in cash or immediately available funds; (ii) upon a legal defeasance or covenant defeasance or discharge under Article VIII, or (iii) as a result of any foreclosure of any pledge or security interest securing the First-Priority Lien Obligations or the exercise of remedies in respect thereof in accordance with the terms of the Intercreditor Agreement. In connection with any termination or release pursuant to this Section 11.04(a), the Collateral Agent shall execute and deliver to the Issuer or any Subsidiary Guarantor, at the Issuer’s or such Subsidiary Guarantor’s expense, all documents that the Issuer or such Subsidiary Guarantor shall reasonably request to evidence such termination or release (including, without limitation, UCC termination statements), and will duly assign and transfer to the Issuer or such Subsidiary Guarantor, such of the Collateral that may be in the possession of the Collateral Agent and has not theretofore been sold or otherwise applied or released pursuant to this Indenture or the Security Documents. Any execution and delivery of documents pursuant to this Section 11.04(a) shall be without recourse to or warranty by the Collateral Agent. In connection with any release pursuant to this Section 11.04(a), the Issuer and Subsidiary Guarantors shall be permitted to take any action in connection therewith consistent with such release including, without limitation, the filing of UCC termination statements. Upon the receipt of an Officers’ Certificate from the Issuer, as described in Section 11.04(b) below, if applicable, and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Collateral Agent shall execute, deliver or acknowledge such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents or the Intercreditor Agreement.
(b) Notwithstanding anything herein to the contrary, in connection with (x) any release of Collateral pursuant to Section 11.04(a)(2), (3), (4) or (9) above, such Collateral may not be released from the Lien and security interest created by the Security Documents and (y) any release of Collateral pursuant to Section 11.04(a)(1), (5), (6), (7) and (8), the Collateral Agent shall not be required to execute, deliver or acknowledge any instruments of termination, satisfaction or release unless, in each case, an Officers’ Certificate and Opinion of Counsel certifying that all conditions precedent to such release, including, without limitation, this Section 11.04, have been met and stating under which of the circumstances set forth in Section 11.04(a) above the Collateral is being released have been delivered to the Collateral Agent on or prior to the date of such release or, in the case of clause (y) above, the date on which the Collateral Agent executes any such subsequent first-priority Liensinstrument.
(c) Notwithstanding anything herein to the contrary, will be second-priority Liens on at any time when a Default or Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee has delivered a notice of acceleration to the Collateral securing such first-priority Liens Agent, no release of Collateral pursuant to the same extent provided by provisions of this Indenture or the Security Documents and on will be effective as against the terms and conditions of the security documents relating to such first-priority Liensholders, with the second-priority Lien held either by the administrative agent, collateral agent or other representative for such first-priority Liens or by a collateral agent or other representative designated by the Company to hold the second-priority Liens for the benefit of the Holders of the Notes and the Trustee and subject to an intercreditor agreement except as otherwise provided in substantially the same form as the Intercreditor Agreement.
Appears in 1 contract
Sources: Indenture (Mariner, LLC)