Release of Liens on Collateral. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documents.
Appears in 3 contracts
Samples: Restructuring Support Agreement (Ion Geophysical Corp), Restructuring Support Agreement (Ion Geophysical Corp), Restructuring Support Agreement (Ion Geophysical Corp)
Release of Liens on Collateral. Subject to (a) The Priority Liens upon the terms Collateral will be automatically released in each of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the following circumstances:
(i) as to all Collateral, in each case prior to upon the Discharge of Priority Lien Obligations;
(ii) as to any Collateral of the Company or any other Grantor that (A) is sold, transferred or otherwise disposed of by the Company or any other Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Company or any other Grantor in a transaction or other circumstance that is not prohibited by the Senior Credit Agreement and the other Priority Lien Documents or (B) becomes Excluded Collateral;
(iii) as to any Collateral Agentof a Grantor that (A) is released as a Grantor (and Guarantor) under each Priority Lien Document (including as a result of becoming an Excluded Subsidiary) and (B) is not obligated (as primary obligor or guarantor) with respect to any other Priority Lien Obligations and, for itself or on behalf in each case, so long as the respective release does not violate the terms of any Priority Lien Document which then remains in effect;
(iv) as to any other release of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensCollateral, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Priority Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Priority Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained; or
(v) as to any Collateral of the Company or any other Grantor that is foreclosed upon by the Collateral Trustee or against which the Collateral Trustee otherwise exercises its rights or remedies (including in connection with an Enforcement Action) (whether or not any Insolvency or Liquidation Proceeding is pending at the time) in each case, which results in a disposition of such Collateral.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that, if the Collateral Trustee at any time receives:
(i) an Officers’ Certificate stating that (A) the signing Authorized Officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such Authorized Officer has made such examination or investigation and has sought legal advice as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, any Intercreditor Agreement and all other Priority Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Authorized Officer, such conditions precedent, if any, have been complied with; provided, that the Collateral Trustee shall be entitled to rely exclusively on such Officer’s Certificate without independent inquiry; and
(ii) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of a Controlling Priority Lien Representative Direction, the Collateral Trustee will execute or otherwise authorize (with such acknowledgements and/or notarizations as are required) and deliver such release is otherwise to the Company or other applicable Grantor.
(c) The Collateral Trustee hereby agrees that in the case of any release pursuant to Section 4.1(a)(ii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) at the expense of the Company or other applicable Grantor, have an authorized representative be present at and permitted deliver the release at the closing of such transaction on behalf of the Collateral Trustee or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release on behalf of the Collateral Trustee.
(d) Each Priority Lien Secured Party acting through its respective Priority Lien Representative and/or by its acceptance of the Note DocumentsSecurity Documents hereby acknowledges and agrees that the Collateral Trustee may, and hereby directs the Collateral Trustee to, provide the releases described in this Section 4.1.
Appears in 3 contracts
Samples: Collateral Trust Agreement (Vistra Energy Corp), Collateral Trust Agreement (Vistra Energy Corp), Collateral Trust Agreement (Energy Future Competitive Holdings Co LLC)
Release of Liens on Collateral. (a) The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Loan Parties on any Collateral shall be automatically be released shall be automatically released:
(1) in full, upon payment in full of all Obligations (other than any contingent obligations or contingent indemnification obligations not then due) arising hereunder;
(2) upon the sale, conveyance, transfer, exchange or other disposition of such Collateral (including as part of or in connection with any other sale, conveyance, transfer, exchange or other disposition permitted hereunder) to any Person other than a Loan Party, to the extent such sale, conveyance, transfer, exchange or other disposition is not prohibited under Section 9.8 hereof;
(3) to the extent the property constituting such Collateral is owned by any Guarantor, upon release of such Guarantor of its obligations under the Guarantee;
(4) to the extent such Collateral is comprised of property leased to a Loan Party by a third party that is not the Loan Party, upon termination or expiration of such lease;
(5) if the release of such Liens is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of Lenders whose consent may be required in accordance with Section 13.1 hereof);
(6) (A) if the Liens on particular assets securing ABL Debt Obligations then secured by that asset are released or will be released simultaneously therewith (unless such release occurs in connection with the discharge in full of such ABL Debt Obligations, which discharge (i) is not in connection with a foreclosure of, or other exercise of remedies with respect to, the Collateral or (ii) is not in connection with a replacement or refinancing of such ABL Debt Obligations, it being understood that in the case of this clause (ii) the Loans will be secured on a second priority basis by Collateral that secures the Domestic Priority Debt that is outstanding after giving effect to any such replacement or refinancing, subject to the Agreed Security Principles) or (B) if such assets do not secure any ABL Debt Obligations because a security interest is no longer granted in such assets to secure the ABL Debt Obligations, due to a waiver by the holders of ABL Debt Obligations or for any other reason (other than in the context described in the parenthetical phrase contained in subclause (A) of this clause (6));
(7) with respect to Net Proceeds constituting Collateral, to the extent such Net Proceeds are used for any one or more purposes permitted under Section 9.8 hereof;
(8) as required to effect any sale or other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Collateral Documents;
(9) if such assets constitute Excluded Collateral (as defined in the Agreed Security Principles) or if, pursuant to the Agreed Security Principles, such assets are no longer required to be subject to a Lien granted to the Collateral Agent; or
(10) in accordance with clause (c) below;
(b) The Administrative Agent and the Collateral Agent hereby agree to execute and deliver (at the Borrower’s expense) any instruments, documents and agreements necessary or desirable to evidence and confirm the release of any Collateral pursuant to clause (a) above.
(c) Subject to the terms of the Intercreditor Agreement, if the second priority liens on the Collateral securing the Loans and any Additional Parity Debt shall terminate and be released automatically to the extent the first priority liens on the Collateral are released in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateralforeclosure of, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies with respect to, such Collateral by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien ABL Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent (except with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchangeconveyance, transfer or other disposition of any Collateral by any Guarantor permitted under the terms that remain after satisfaction in full of the Priority Lien Documents ABL Debt Obligations) (notwithstanding the existence of an Event of Default). Except as set forth in clause (1) through (9) of Section 10.2(a) and not expressly prohibited under the terms prior sentence, no release of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new second-priority liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes Loan and any Permitted Additional Parity Debt shall be made unless (Ai) consent to the such release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes the Loans and any Permitted Additional Parity Debt at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsapplicable Loan Document or Additional Parity Debt Document.
Appears in 2 contracts
Samples: Second Lien Loan Agreement (SunOpta Inc.), Second Lien Loan Agreement (SunOpta Inc.)
Release of Liens on Collateral. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien The Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien shall release its Liens upon the Collateral Agent’s remedies in respect of upon the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf occurrence of any of the Priority Lien following:
(a) in whole, upon the Secured Parties, releases any of its Liens on any part Debt Termination Date; and
(b) upon the written request of the Collateral or such Priority Lien Representative, for itself or on behalf of any of Borrower and the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of applicable Grantor to the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject as to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that such release is permitted by the terms of all of the Credit Agreement Documents which then remain in effect, including, without limitation any Priority Lien Collateral Agentsuch release permitted by Section 7.14(c) or 7.15(b) of each Credit Agreement; provided, any Priority Lien Representative or Priority Lien Secured Parties that (i) have released any Lien on the Borrower has delivered an Officer’s Certificate to the Collateral or any Guarantor from its obligation under its guaranty and Agent certifying that any such Liens or guaranty are later reinstated or release is permitted by all of the Credit Agreement Documents which then remain in effect, and (ii) obtain any new liens or additional guarantees from any Guarantor, then if requested by the Collateral AgentAgent of any Credit Agreement Representative, such Credit Agreement Representative has delivered a certificate to the Collateral Agent certifying that any such release is permitted by all of the applicable Credit Agreement Documents for itself which such Credit Agreement Representative acts; provided, however, that the failure or delay of such Credit Agreement Representative to provide such certificate shall not prohibit the Collateral Agent from releasing such Liens. Notwithstanding the foregoing, at any time that any Grantor desires that the Collateral Agent take any action to acknowledge or give effect to any release of Collateral pursuant to the foregoing provisions of this Section 4.1, the Borrower and the Parity Lien Secured Parties, respective Grantor shall be granted a Lien on any such Collateral, subject deliver to the lien subordination provisions Collateral Agent a certificate signed by a Responsible Officer of the Intercreditor Agreement, Borrower and such Grantor stating that the Trustee, for itself and for the holders release of the New Second Lien Convertible Notes, shall be granted an additional guarantyrespective Collateral is permitted pursuant to Section 4.1(a) or (b) , as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary determining whether any release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral)is permitted, no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained shall be entitled to conclusively rely on any officer’s certificate furnished to it pursuant to the immediately preceding sentence. All actions taken pursuant to this Section 4.1 shall be at the sole cost and such release is otherwise authorized expense of the Borrower and permitted by the Note Documentsrespective Grantor.
Appears in 2 contracts
Samples: Credit Agreement (Diversified Healthcare Trust), Term Loan Agreement (Diversified Healthcare Trust)
Release of Liens on Collateral. Subject The Collateral Agent’s Liens upon the Collateral will be released and terminate:
(a) in whole, automatically, upon the occurrence of the Secured Debt Termination Date;
(b) upon the written request of the Company and the respective Grantor to the Collateral Agent, as to any Collateral of a Grantor (other than the Company) that (x) is released as a Guarantor under each Secured Debt Document and (y) is not obligated (as primary obligor or guarantor) with respect to any other Secured Obligations at such time and so long as the respective release does not violate the terms of any Secured Debt Document which then remains in effect or the Intercreditor Agreement;
(c) as to any Collateral that is released, sold, transferred or otherwise disposed of by the Company or any other Grantor to a Person that is not (either before or after such release, sale, transfer or disposition) the Company or a Subsidiary thereof in a transaction or other circumstance that complies with the terms of the Intercreditor Agreement, if Existing Indenture (for so long as the Existing Indenture is in connection with any Enforcement Action effect) and is not prohibited by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien other Secured PartiesDebt Documents, releases any of its Liens on any part of at the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notesrelease, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementinterest released, and the Trusteesold, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, transferred or otherwise disposed of;
(d) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect pursuant to such Collateralclause (a), no (b) or (c) above) at any time prior to the Discharge of Secured Obligations if written consent to the release of the all Liens on such Collateral securing has been given by an Act of Required Secured Debtholders; and
(e) as to a release of all or substantially all of the New Second Lien Convertible Notes shall be made unless Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note applicable Secured Debt Documents and (B) ION the Company has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained obtained.
(f) At any time that any Grantor desires that the Collateral Agent take any action to acknowledge or give effect to any release of Collateral pursuant to the foregoing provisions of this Section 4.1, the Company shall, on behalf of itself or the respective Grantor, deliver to the Collateral Agent an Officer’s Certificate, and such with respect to clause (e) above an Opinion of Counsel, each stating that the release of the respective Collateral is otherwise authorized permitted pursuant to Section 4.1(a), (b), (c), (d) or (e), as the case may be. In determining whether any release of Collateral is permitted, the Collateral Agent shall be entitled to conclusively rely on any Officer’s Certificate (and permitted by if applicable, any Opinion of Counsel) furnished to it pursuant to the Note Documentsimmediately preceding sentence. All actions taken pursuant to this Section 4.1 shall be at the sole cost and expense of the Company and the respective Grantor.
Appears in 2 contracts
Samples: Collateral Trust and Intercreditor Agreement, Collateral Trust and Intercreditor Agreement (Northern Tier Retail LLC)
Release of Liens on Collateral. Subject to (a) The Collateral Trustee’s Liens upon the terms of Collateral will be automatically, and without the Intercreditor Agreement, if in connection with need for any Enforcement Action by any Priority Lien Representative consent or any Priority Lien Collateral Agent or any other exercise approval of any Priority Lien Representative’s Secured Party or any Priority Lien the Collateral Agent’s remedies Trustee (except as contemplated by clauses (5) and (6) below), released in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Partiesfollowing circumstances:
(1) in whole, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the upon Discharge of Priority Lien Secured Obligations;
(2) as to any Collateral that is sold, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on (other than by lease or license) by Parent or any other Grantor in a transaction or other circumstance which is not prohibited by, and, to the property or assets extent applicable, in accordance with, all applicable Secured Debt Documents at the time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition or to the extent of such Collateral sold, transferred or otherwise disposed of;
(3) as to any Collateral by sold in a foreclosure or similar transaction or in connection with any Guarantor permitted under other exercise of remedies in accordance with the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), this Agreement and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, other Security Documents;
(4) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event property of a Discharge of Grantor that becomes an Excluded Asset (as defined in the Priority Lien Obligations or Credit Agreement);
(5) as to a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien pursuant to clause (1), (2), (3) or (4) above), if directed by an Act of Required Secured Parties’ foreclosure upon ; and
(6) as to a release of all or substantially all of the Collateral (other exercise of rights and remedies with respect than pursuant to such Collateralclause (1) above), no if consent to release of the Liens on such that Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the Secured Debt Representatives representing the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note applicable Secured Debt Documents and such release has become effective in accordance with such consent.
(Bb) ION has delivered an officers’ certificate to A Grantor shall be automatically released from its obligations under this Agreement and the Priority Lien Collateral Agent, the Trustee other Security Documents and the Collateral Agent certifying Trustee’s Liens upon the Collateral of such Grantor and the capital stock or other equity interests of such Grantor shall be automatically released if such Grantor (x) ceases to be a Restricted Subsidiary (as defined in each applicable Secured Debt Document) or (y) becomes an Excluded Subsidiary (as defined in each applicable Secured Debt Document); provided that Parent has elected for such Excluded Subsidiary to be released in accordance with the Credit Agreement.
(c) The Collateral Trustee agrees for the benefit of Parent and the other Grantors that if the Collateral Trustee at any time receives:
(1) an Officer’s Certificate stating that the conditions precedent in this Agreement and all such consents other Secured Debt Documents, if any, relating to the release of the applicable Collateral have been obtained complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) in the case of a release requested pursuant to Section 4.1(a)(5) or Section 4.1(a)(6), the written confirmation of each Secured Debt Representative that consent from the applicable Secured Parties that are required to consent to such release has been obtained; then the Collateral Trustee will promptly (i) execute (with such acknowledgements and/or notarizations as are required), deliver and provide Parent or such Grantor (or its designee or counsel) authorization to file (if applicable) such releases and such other documents (including UCC termination statements, reconveyances and customary pay-off letters) as Parent or such Grantor may reasonably request to evidence and effectuate such release is otherwise authorized to Parent or such Grantor and permitted (ii) take such other actions (including return of any Collateral to Parent or such Grantor) as Parent or such Grantor may reasonably request in connection with such release, in each case, on or prior to the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(c) by the Note DocumentsCollateral Trustee.
(d) The Collateral Trustee hereby agrees that in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of Parent or other applicable Grantor, the Collateral Trustee will deliver the release under customary escrow or other arrangements that permit such contemporaneous payment and delivery of the release.
Appears in 2 contracts
Samples: Collateral Trust Agreement (Endo International PLC), Indenture (Endo International PLC)
Release of Liens on Collateral. Subject In addition to (and subject to) the terms of the any Intercreditor Agreement, if the Liens on the Collateral shall be released and discharged and the Security Documents shall provide that the Liens on the Collateral shall be released and discharged:
(1) in connection part, with respect to any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of Guarantor, upon the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any release of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to Note Guarantee in accordance with the terms of this Indenture (including by virtue of a Restricted Subsidiary being designated as an Unrestricted Subsidiary);
(2) in whole, upon payment in full and discharge of all outstanding Obligations under the Intercreditor AgreementNotes that are then outstanding and due and payable, if at the time all of the Notes are paid in connection with full and discharged;
(3) as to any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agentthat is sold, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of by the Issuer or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Corporation or a Restricted Subsidiary in a transaction or other circumstance that does not violate Sections 5.8 and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of does not violate any of the Priority Lien Secured Parties represented by itother Note Documents, releases any at the time of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any such sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under or to the terms extent of the Priority Lien Documents and not expressly prohibited under interest sold, transferred or otherwise disposed of, provided that the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of Liens upon the Collateral Agent, for itself shall not be released if the sale or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, disposition is subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Section 5.14;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with including by way of any amendment to, or waiver of, the Priority Lien Secured Parties’ foreclosure upon provisions of this Indenture or other exercise of rights and remedies with respect to such Collateralany Security Document), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) if consent to the release of all Liens on such Liens securing the New Second Lien Convertible Notes Collateral has been given by an Act of Required Holders;
(5) as to a release of all or substantially all of the requisite percentage Collateral (including by way of any amendment to, or number waiver of, the provisions of this Indenture or any Security Document), if consent to the release of all Liens on such Collateral has been given by a direction in writing delivered to the Collateral Agent by or with a resolution by, or the written consent of, the Holders of Notes representing at least 66 2/3% in aggregate principal amount of the then outstanding Notes; and
(6) as to any Collateral that is sold, transferred or otherwise disposed of pursuant to the exercise of any rights or remedies by the Collateral Agent with respect to any Collateral securing the Notes or the Note Guarantees or the commencement or prosecution of enforcement by the holders of New Second First Priority Lien Convertible Notes at Obligations of any of the time outstanding as provided for in rights or remedies under any security document securing First Priority Lien Obligations or applicable law, including, without limitation, the exercise of any rights of set-off or recoupment. The Security Documents shall provide that the Liens securing Obligations under the Note Documents and (B) ION has delivered an officers’ certificate shall extend to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsproceeds of any sale of Collateral.
Appears in 2 contracts
Samples: Trust Indenture (Wall2wall Media Inc.), Trust Indenture (Wall2wall Media Inc.)
Release of Liens on Collateral. Subject The Collateral Trustee’s Liens upon the Collateral will be released and terminate:
(a) in whole, upon the Secured Debt Termination Date;
(b) with respect to Liens upon the Collateral securing the First Lien Debt, in whole and automatically upon the occurrence of the Secured Debt Termination Date with respect to the First Lien Debt;
(c) with respect to Liens upon the Collateral securing the Second Lien Debt (if any), in whole and automatically upon the occurrence of the Secured Debt Termination Date with respect to the Second Lien Debt;
(d) upon the written request of the Company and the respective Grantor to the Collateral Trustee, as to any Collateral of a Grantor (other than the Company) that (x) is released as a Guarantor under the Guarantee, pursuant to the provisions thereof (or the relevant provisions of any replacement or successor guaranty), and (y) is not obligated (as primary obligor or guarantor) with respect to any other First Lien Obligations at such time and so long as the respective release does not violate the terms of the Intercreditor Agreementany First Lien Document which then remains in effect;
(e) as to any Collateral that is released, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateralsold, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any other Grantor to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on release, sale, transfer or disposition) the property Company or assets of such Person then the Liens of the Collateral Agent a Restricted Subsidiary in a transaction or other circumstance that complies with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of each then extant Credit Agreement (for so long as the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of Credit Agreement is in effect) and is not prohibited by any of the Priority Lien other Secured Parties represented by itDebt Documents, releases any at the time of its Liens on any part of the Collateralsuch release, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementinterest released, and the Trusteesold, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, transferred or otherwise disposed of;
(f) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect pursuant to such Collateralclause (a), no (b), (c), (d) or (e) above) at any time prior to the Discharge of First Lien Obligations if consent to the release of the all First Liens on such Collateral securing has been given by an Act of Required Debtholders;
(g) as to a release of less than all or substantially all of the New Collateral (other than pursuant to either clause (a), (b), (c), (d), (e) or (f) above) at any time after the Discharge of First Lien Obligations, if consent to the release of all Second Liens on such Collateral has been given by the Required Second Lien Convertible Notes shall be made unless Debtholders; and
(h) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note applicable Secured Debt Documents and (B) ION the Company has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained obtained.
(i) At any time that any Grantor desires that the Collateral Trustee take any action to acknowledge or give effect to any release of Collateral pursuant to the foregoing provisions of this Section 4.1, the Company and the respective Grantor shall deliver to the Collateral Trustee an Officer’s Certificate signed by an officer of the Company and such Grantor stating that the release of the respective Collateral is otherwise authorized permitted pursuant to Section 4.1(a), (b), (c), (d), (e), (f), (g) or (h), as the case may be. In determining whether any release of Collateral is permitted, the Collateral Trustee shall be entitled to conclusively rely on any Officer’s Certificate furnished by it pursuant to the immediately preceding sentence. All actions taken pursuant to this Section 4.1 shall be at the sole cost and permitted by expense of the Note DocumentsCompany and the respective Grantor.
Appears in 2 contracts
Samples: Collateral Agency and Intercreditor Agreement, Collateral Agency and Intercreditor Agreement (Intelsat S.A.)
Release of Liens on Collateral. Subject (a) The Collateral securing the Obligations under the Note Documents will automatically and without the need for any further action by any Person be released in any of the following circumstances:
(i) in part as to any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances or that is or becomes Excluded Property;
(ii) in whole upon:
(A) satisfaction and discharge of this Indenture pursuant to Article Eleven hereof; or
(B) a legal defeasance or covenant defeasance of this Indenture pursuant to Article Eight hereof;
(iii) in part, as to any property that (a) is sold, transferred or otherwise disposed of by the Company or any Guarantor (other than to the terms Company or another Guarantor) in a transaction not prohibited by this Indenture and the Security Documents at the time of the Intercreditor Agreementsuch sale, if transfer or disposition or in connection with any Enforcement Action by any Priority Lien Representative or any Priority exercise of remedies pursuant to this Indenture, the Security Documents the Second Lien Collateral Agent Trust Agreement, the other Security Documents or the First Lien/Second Lien Intercreditor Agreement or (b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee in accordance with this Indenture, concurrently with the release of such Guarantee (including in connection with the designation of a Guarantor as an Unrestricted Subsidiary);
(iv) in whole or in part, pursuant to an Act of Required Secured Parties under the Second Lien Collateral Trust Agreement and upon delivery of instructions and any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateraldocumentation, in each case prior as required by this Indenture, the Second Lien Collateral Trust Agreement and the Security Documents;
(v) as to any asset constituting Collateral if all other Liens on that asset securing First Lien Secured Obligations and any other Second Lien Secured Obligations then secured by that asset (including commitments thereunder) are released or will be released simultaneously therewith, other than by reason of the payment under or termination of any such First Lien Secured Obligations and other Second Lien Secured Obligations to the Discharge of Priority Lien Obligationsextent set forth in the Security Documents, such Priority the Second Lien Collateral AgentTrust Agreement, for itself and the First Lien/Second Lien Intercreditor Agreement; and
(vi) in whole or on behalf of any in part, in accordance with the applicable provisions of the Priority Security Documents, the Second Lien Secured Parties, releases any of its Liens on any part of Collateral Trust Agreement and the Collateral or such Priority First Lien/Second Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Intercreditor Agreement.
(b) A Guarantor shall be automatically released from its obligations under its guaranty the Second Lien Collateral Trust Agreement, the First Lien/Second Lien Intercreditor Agreement and the other Security Documents and the Second Lien Collateral Trustee’s Liens upon the Collateral of such Guarantor and the Capital Stock or other Equity Interests of such Guarantor shall be automatically released if such Guarantor ceases to be a Restricted Subsidiary. Notwithstanding anything to the contrary herein, at the request and expense of the Priority Company, the Second Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, Trustee is irrevocably authorized by the Trustee and for the benefit each Holder, by its acceptance of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases to:
(1) subordinate its Lien on the any property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority incurrence of any Indebtedness pursuant to clauses (iv) or (xx) of Section 4.09(b)); and
(2) subordinate its Lien Secured Parties’ foreclosure upon on any property to the holder of any Lien on such property that is permitted by clause (3) or other exercise (4) of rights and remedies the definition of “Permitted Liens” or with respect to such Collateral), no release which an Act of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes Required Secured Parties has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsobtained.
Appears in 2 contracts
Samples: Indenture (Geo Group Inc), Indenture (Geo Group Inc)
Release of Liens on Collateral. Subject to (a) In the terms event of (A) any private or public sale of all or any portion of the Intercreditor Agreement, if ABL Priority Collateral in connection with any Enforcement Action Exercise of Secured Creditor Remedies by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect with the consent of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral ABL Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assetsB) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of all or any portion of the ABL Priority Collateral, so long as such sale, transfer or other disposition is then permitted by the ABL Documents and Cash Flow Collateral Documents, (C) the release of the ABL Secured Parties’ Liens on all or any portion of the ABL Priority Collateral, so long as such release shall have been approved by any the requisite ABL Lenders (as determined pursuant to the ABL Documents) and the requisite Cash Flow Collateral Secured Parties (as determined pursuant to the Collateral Agency Agreement) or (D) the release of the ABL Secured Parties’ Liens on ABL Priority Collateral of an ABL Guarantor permitted under upon the termination and discharge of the applicable subsidiary guaranty in accordance with the terms of the Priority Lien ABL Documents and the Cash Flow Collateral Documents, in the case of clauses (B), (C) and (D) only to the extent prior to the date upon which the Discharge of ABL Obligations shall have occurred and not expressly prohibited under the terms of the Note Documents (other than in connection with a Discharge of ABL Obligations (and irrespective of whether an Enforcement Action or other exercise Event of Default has occurred), the Cash Flow Collateral Representative agrees, on behalf of itself and the Cash Flow Collateral Secured Parties, that so long as the net cash proceeds of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Lienssuch sale, if any, of described in clause (A) above are applied as provided in Section 3.4, and, in each case, the Lien on such ABL Priority Collateral is released by the ABL Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), sale will be free and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release clear of the Liens on such ABL Priority Collateral securing the New Second Cash Flow Collateral Obligations, and the Cash Flow Collateral Representative’s and the Cash Flow Collateral Secured Parties’ Liens with respect to the ABL Priority Collateral so sold, transferred, disposed or released shall terminate and be automatically released without further action. In furtherance of, and subject to, the foregoing, the Cash Flow Collateral Representative agrees that it will execute any and all Lien Convertible Notes shall be made unless releases or other documents reasonably requested by the ABL Agent in connection therewith, so long as the net cash proceeds, if any, from such sale or other disposition of such ABL Priority Collateral described in clause (A) above are applied in accordance with the terms of this Agreement. The Cash Flow Collateral Representative hereby appoints the ABL Agent and any officer or duly authorized person of the ABL Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Cash Flow Collateral Representative and in the name of the Cash Flow Collateral Representative or in the ABL Agent’s own name, from time to time, in the ABL Agent’s sole discretion, for the purposes of carrying out the terms of this paragraph, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be necessary or desirable to accomplish the purposes of this paragraph, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
(b) In the event of (A) any private or public sale of all or any portion of the Cash Flow Priority Collateral in connection with any Exercise of Secured Creditor Remedies by or with the consent to of the Cash Flow Collateral Representative, (B) any sale, transfer or other disposition of all or any portion of the Cash Flow Priority Collateral, so long as such sale, transfer or other disposition is then permitted by the ABL Documents and Cash Flow Collateral Documents, (C) the release of the Cash Flow Collateral Secured Parties’ Liens on all or any portion of the Cash Flow Priority Collateral, so long as such Liens securing the New Second Lien Convertible Notes has release shall have been given approved by the requisite percentage ABL Lenders (as determined pursuant to the ABL Documents) and the requisite Cash Flow Collateral Secured Parties (as determined pursuant to the Collateral Agency Agreement) or number (D) the release of the holders Cash Flow Collateral Secured Parties’ Liens on Cash Flow Priority Collateral of New Second Lien Convertible Notes at a Cash Flow Collateral Guarantor upon the time outstanding termination and discharge of the applicable subsidiary guaranty in accordance with the terms of the ABL Documents and the Cash Flow Collateral Documents, in the case of clauses (B), (C) and (D) only to the extent prior to the date upon which the Discharge of Cash Flow Collateral Obligations shall have occurred and not in connection with a Discharge of Cash Flow Collateral Obligations (and irrespective of whether an Event of Default has occurred), the ABL Agent agrees, on behalf of itself and the ABL Secured Parties, that so long as the net cash proceeds of any such sale, if any, described in clause (A) above are applied as provided for in Section 3.4, and, in each case, the Lien on such Cash Flow Priority Collateral is released by the Cash Flow Collateral Representative, such sale will be free and clear of the Liens on such Cash Flow Priority Collateral securing the ABL Obligations, and the ABL Agent’s and the ABL Secured Parties’ Liens with respect to the Cash Flow Priority Collateral so sold, transferred, disposed or released shall terminate and be automatically released without further action. In furtherance of, and subject to, the foregoing, the ABL Agent agrees that it will execute any and all Lien releases or other documents reasonably requested by the Cash Flow Collateral Representative in connection therewith, so long as the net cash proceeds, if any, from such sale or other disposition of such Cash Flow Priority Collateral described in clause (A) above are applied in accordance with the terms of this Agreement. The ABL Agent hereby appoints the Cash Flow Collateral Representative and any officer or duly authorized person of the Cash Flow Collateral Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the Note Documents place and stead of the ABL Agent and in the name of the ABL Agent or in the Cash Flow Collateral Representative’s own name, from time to time, in the Cash Flow Collateral Representative’s sole discretion, for the purposes of carrying out the terms of this paragraph, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be necessary or desirable to accomplish the purposes of this paragraph, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (B) ION has delivered which appointment, being coupled with an officers’ certificate to the Priority Lien Collateral Agentinterest, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsirrevocable).
Appears in 2 contracts
Samples: Crossing Lien Intercreditor Agreement (Gogo Inc.), Indenture (Gogo Inc.)
Release of Liens on Collateral. Subject (i) The Liens on the Collateral shall automatically and without the need for any further action by any Person be released:
(A) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by the Borrower or any Guarantor (other than to the terms Borrower or another Guarantor) in a transaction not prohibited by this Agreement or the Security Documents at the time of the Intercreditor such sale, transfer or disposition or (b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee in accordance with this Agreement, if concurrently with the release of such Guarantee (including, in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise the designation of a Subsidiary as an Excluded Subsidiary)
(B) in part, in accordance with the applicable provisions of the Security Documents and the ABL Intercreditor Agreement.
(ii) With respect to the release of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of Property for which a specific discharge is required, the Collateral, in Borrower and each case prior Guarantor shall furnish to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, prior to each proposed release of Collateral pursuant to the Security Documents and this Agreement:
(A) an Officer’s Certificate requesting such release;
(B) an Officer’s Certificate and an opinion of counsel to the effect that all conditions precedent provided for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, in this Agreement and the obligations Security Documents to such release have been complied with; and
(C) a form of such Guarantor under its guaranty of the New Second Lien Convertible Notes, release (which release shall be automatically, unconditionally and simultaneously released. Subject in form reasonably satisfactory to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect and shall provide that the requested release is without recourse or warranty to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer Agent or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed Secured Parties). Upon compliance by the previous paragraph), in each case other than in connection with, Borrower or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guarantyGuarantors, as the case may be. In , with the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of conditions precedent set forth above, the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights Agent shall promptly cause to be released and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent reconveyed to the release of such Liens securing Borrower, or the New Second Lien Convertible Notes has been given by Guarantors, as the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agentcase may be, the Trustee released Collateral, and the Collateral Agent certifying that all shall execute and deliver such consents have been obtained documents and instruments prepared by the Borrower as the Borrower and the Guarantors may reasonably request to evidence such release is otherwise authorized and permitted by without the Note Documentsconsent of the other Secured Parties.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Postmedia Network Canada Corp.), Revolving Credit Agreement (Postmedia Network Canada Corp.)
Release of Liens on Collateral. Subject (a) The Collateral Agent’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and the cancellation or termination, cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents or, solely to the extent if any agreed to by the issuer of any outstanding letter of credit issued pursuant to any Parity Lien Document, the issuance of a back to back letter of credit in connection with favor of the issuer of any Enforcement Action such outstanding letter of credit in an amount equal to such outstanding letter of credit and issued by a financial institution acceptable to such issuer;
(2) as to any Priority Lien Representative Collateral that is sold, transferred or any Priority Lien Collateral Agent otherwise disposed of by the Issuer or any other exercise of any Priority Lien Representative’s Grantor to a Person that is not (either before or any Priority Lien Collateral Agent’s remedies after such sale, transfer or disposition) the Issuer or another Note Obligor in respect a transaction or other circumstance that is permitted by Section 4.06 of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensIndenture, if any, and is permitted by all of the Collateral Agentother Parity Lien Documents, for itself, at the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under or to the terms extent of the Priority Lien Documents and not expressly prohibited under interest sold, transferred or otherwise disposed of; provided, that the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of Liens upon the CollateralCollateral will not be released if the sale or disposition is to a Person who succeeds to, which shall be governed by the previous paragraph), in each case other than in connection with, or followingand is substituted for, the Discharge of Priority Lien Obligations, then Issuer or any other Note Obligor under the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), Indenture and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, Notes pursuant to the extent that any Priority Lien Collateral Agentprovisions in the Indenture governing “Merger, any Priority Lien Representative Consolidation or Priority Lien Secured Parties Sale of Assets”;
(i3) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted as to a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect pursuant to such Collateralclause (2) above), no if directed by an Act of Required Secured Parties (but only upon receipt by the Collateral Agent of an Officers’ Certificate to the effect that the release was permitted by each applicable Parity Lien Debt Document); provided, that this clause (3) shall not apply to (i) Discharge of Parity Lien Obligations upon payment in full thereof or (ii) sales or dispositions to a Person or a Subsidiary of a Person who succeeds to, and is substituted for, the Issuer or any other Note Obligor under the Indenture and the Notes pursuant to the provisions in the Indenture governing “Merger, Consolidation or Sale of Assets”;
(4) as to a release of all or substantially all of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (other than pursuant to clause (1) above), if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Issuer has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained obtained;
(5) if any Grantor (i) ceases to be a Note Guarantor (including as a result of being designated as an Unrestricted Subsidiary or ceasing to be a Subsidiary) (ii) is sold, transferred or otherwise disposed of to a Person that is not the Issuer or a Restricted Subsidiary or (iii) is released from its obligations under each of the Security Documents, then the Liens on such Collateral and the obligations of such Grantor under its Guarantee of the Parity Lien Obligations, shall be automatically, unconditionally and simultaneously released; and
(6) if and to the extent required under the Intercreditor Agreements.
(b) The Collateral Agent agrees for the benefit of the Issuer and the other Grantors that if the Collateral Agent at any time receives an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with, then the Collateral Agent will execute (with such acknowledgements and/or notarizations as are required) and deliver such release is otherwise authorized to the Issuer or other applicable Grantor on or before the later of (x) the date specified in such request for such release and permitted (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Note DocumentsCollateral Agent.
(c) The Collateral Agent hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Issuer or other applicable Grantor, the Collateral Agent will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Parity Lien Debt Default under a Series of Parity Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Secured Parties pursuant to Section 4.1(a)(3), the Collateral Agent will deliver a copy of such Act of Required Secured Parties to each Authorized Representative.
(d) Each Authorized Representative hereby agrees that within one Business Day of the receipt by it of any notice from the Collateral Agent pursuant to Section 4.1(c)(2), such Authorized Representative will deliver a copy of such notice to each registered holder of the Series of Parity Lien Debt for which it acts as Authorized Representative.
Appears in 2 contracts
Samples: Parity Lien Intercreditor Agreement, Parity Lien Intercreditor Agreement (Constellium N.V.)
Release of Liens on Collateral. Subject (a) The Collateral Agent’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full in cash and discharged (or, in the case of Hedging Obligations, the cash collateralization of all such Hedging Obligations (or other arrangements with respect to all such Hedging Obligations) on terms reasonably satisfactory to each applicable counterparty, and the expiration and termination of all outstanding transactions under Hedging Agreements (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time)) and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination, cash collateralization (at the lower of (1) 103% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents or the issuance of a back to back letter of credit in favor of the issuer of any such outstanding letter of credit in an amount equal to the amount described in the parenthetical clause above and issued by a financial institution reasonably acceptable to such issuer;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action transferred or otherwise disposed of by any Priority Lien Representative or any Priority Lien Collateral Agent the Borrower or any other exercise Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Subsidiary of any Priority Lien Representative’s the Borrower in a transaction or any Priority Lien other circumstance that complies with and is permitted by all of the Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Agent’s remedies in respect Liens upon the Collateral will not be released if the sale or disposition is subject to Section 4.06 or Section 5.01 of the CollateralIndenture unless the Borrower has complied with the procedures and requirements in connection therewith set forth in the Indenture;
(3) as to a release of less than all or substantially all of the Collateral (other than pursuant to clause (2) above), in each case if (A) consent to the release of all First Liens (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Priority Second Lien Obligations, the Second Liens, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Liens) on such Priority Collateral has been given by an Act of Required Secured Parties and consent to the release of all Second Liens on such Collateral has been given by the Required Second Lien Debtholders or (B) the First Liens (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Second Lien Obligations, the Second Liens, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Liens) on such Collateral Agenthave been automatically released pursuant to the First Lien Documents (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Second Lien Obligations, the Second Lien Documents, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Lien Documents) and the Second Liens on such Collateral have been automatically released pursuant to the Second Lien Documents; provided, that this clause (3) shall not apply to (i) Discharge of First Lien Obligations upon payment in full thereof or Discharge of Second Lien Obligations upon payment in full thereof or (ii) sales or dispositions subject to Section 4.06 of the Indenture unless the Borrower has complied with the procedures and requirements in connection therewith set forth in the Indenture;
(4) as to a release of all or substantially all of the Collateral (other than pursuant to clause (1) above), if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for itself or in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officers’ Certificate to the Collateral Agent certifying that any such necessary consents have been obtained;
(5) if any Guarantor is released from its obligations under each of the Second Lien Documents, then the Second Liens on behalf such Collateral and the obligations of such Guarantor under its Guarantee of the Second Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(6) if any Guarantor is released from its obligations under each of the Third Lien Documents, then the Third Liens on such Collateral and the obligations of such Guarantor under its Guarantee of the Third Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(7) notwithstanding any of the Priority foregoing, if the Collateral Agent is exercising its rights or remedies with respect to the Collateral under the First Lien Security Documents pursuant to an Act of Required Secured Parties, and the Collateral Agent releases any of its the First Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority First Lien ObligationsObligations in connection therewith, then the Liens, if any, of Second Liens and the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, Third Liens on such Collateral, Collateral and the obligations of such Guarantor under its guaranty Guarantee of the New Second Lien Convertible NotesObligations and the Third Lien Obligations, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any Priority the Collateral Agent under the First Lien Representative or any Priority Lien Collateral Agent, in each case prior Security Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien the Collateral Agent releases its Lien First Liens on the property or assets of such Person then the Second Liens of and the Collateral Agent Third Liens with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the First Liens on such property or assets are released; provided, however, that the release of such Priority Lien the Second Liens and the Third Liens on Collateral Agent. Subject pursuant to this paragraph (7) shall not occur with respect to any Collateral, the net cash proceeds of the disposition of which will not be applied to repay (and, to the terms extent applicable, to reduce permanently commitments with respect to) the First Lien Obligations without the consent of the Intercreditor AgreementSecond Lien Administrative Agent or the Trustee, if any Priority Lien Collateral Agent, for itself or on behalf of as the case may be; and
(8) notwithstanding any of the Priority foregoing, if the Collateral Agent is exercising its rights or remedies with respect to the Collateral under the Second Lien Security Documents pursuant to an Act of Required Secured Parties represented by itParties, and the Collateral Agent releases any of its the Second Liens on any part of the Collateral, Collateral or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority Second Lien Obligations, Obligations in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligationstherewith, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, Third Liens on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty Guarantee of the New Second Third Lien Convertible NotesObligations, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs If in connection with the Priority Lien Secured Parties’ foreclosure upon or other any exercise of rights and remedies by the Collateral Agent under the Second Lien Security Documents pursuant to an Act of Required Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and the Collateral Agent releases Second Liens on the property or assets of such Person then the Third Liens with respect to the property or assets of such Collateral)Person will be concurrently and automatically released to the same extent as the Second Liens on such property or assets are released; provided, no however, that the release of the Third Liens on such Collateral securing pursuant to this paragraph (8) shall not occur with respect to any Collateral, the New net cash proceeds of the disposition of which will not be applied to repay (and, to the extent applicable, to reduce permanently commitments with respect to) the Second Lien Convertible Notes shall be made unless Obligations without the consent of the Trustee.
(b) The Collateral Agent agrees for the benefit of the Borrower and the other Grantors that if the Collateral Agent at any time receives:
(1) an Officers’ Certificate stating that (A) consent the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Liens securing officer, such conditions precedent, if any, have been complied with;
(2) the New proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) prior to the Discharge of First Lien Obligations, the written confirmation of each First Lien Representative (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Second Lien Convertible Notes has been Obligations, the Second Lien Administrative Agent, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Trustee) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the requisite percentage or number of respective Secured Debt Documents governing the Secured Obligations the holders of New Second Lien Convertible Notes which such Secured Debt Representative represents; then the Collateral Agent will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or other applicable Grantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Agent.
(c) The Collateral Agent hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the time outstanding as provided for in written request of and at the Note Documents expense of the Borrower or other applicable Grantor, the Collateral Agent will either (A) be present at and deliver the release at the closing of such transaction or (B) ION deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Second Lien Debt or Third Lien Debt has delivered an officers’ certificate occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Secured Parties pursuant to the Priority Lien Collateral AgentSection 4.1(a)(3), the Trustee and the Collateral Agent certifying will deliver a copy of such Act of Required Secured Parties to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officers’ Certificate from the Borrower pursuant to Section 4.1(b)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 4.1(b)(3), (B) a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.1(a) or (C) a request for further information from the Note DocumentsBorrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within two Business Days of the receipt by it of any notice from the Collateral Agent pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Secured Debt for which it acts as Secured Debt Representative.
Appears in 2 contracts
Samples: First Lien Credit and Guaranty Agreement (Alion Science & Technology Corp), Intercreditor Agreement (Alion Science & Technology Corp)
Release of Liens on Collateral. Subject to (a) The Parity Liens upon the terms Collateral will be automatically released in each of the Intercreditor Agreementfollowing circumstances:
(1) in whole (other than with respect to indemnification and other contingent obligations not then due and payable or for which no claim has been made), if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the upon Discharge of Priority Parity Lien Obligations;
(2) as to any Collateral that is sold, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of by any Grantor or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) a Grantor or a Guarantor in a transaction or other circumstance that complies with the “Asset Sale” provisions of the Second Lien Indenture and such Priority is permitted by the other Parity Lien Collateral Agent releases its Lien on Documents at the property or assets time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided that the Parity Liens upon the Collateral will not be released if the sale or disposition is subject to the “Merger, Consolidation or Sale of Assets” provisions of the Second Lien Indenture or any similar provision in any other Parity Lien Documents;
(3) as to any Collateral by any of a Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have such Guarantor is released any Lien on Collateral or any Guarantor from its obligation under its guaranty and guarantee of any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to Debt in accordance with the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture and all other applicable Parity Lien Documents,
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by, or the Collateral Trustee otherwise receives written direction to release such Collateral in, an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to any other release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note Documents applicable Parity Lien Documents, and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Collateral Trustee certifying that all such necessary consents have been obtained;
(7) if and to the extent any Collateral becomes an Excluded Asset (as defined in the Second Lien Indenture);
(8) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement; and
(9) as ordered pursuant to applicable law under a final and nonappealable order or judgment of a court of competent jurisdiction.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that, if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate and an Opinion of Counsel each stating that (A) the signing Officer (in the case of the Company) or Person (in the case of an Opinion of Counsel) has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such Officer or Person, as applicable, has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Officer or such Person, as applicable, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of the items required by this Section 4.1(b), upon written request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(8), the Collateral Trustee shall execute and deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Priority Lien Collateral AgentAgent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that in the case of any release pursuant to Section 4.1(a)(2), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the Collateral Agent certifying release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that all permit such consents have been obtained contemporaneous payment and such release is otherwise authorized and permitted by delivery of the Note Documentsrelease.
Appears in 2 contracts
Samples: Collateral Trust Agreement, Collateral Trust Agreement (Vanguard Natural Resources, Inc.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full of all outstanding Secured Debt Obligations at the time such debt is paid in full and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the terms cancellation or termination or cash collateralization in an account maintained by the Collateral Trustee (at the lower of (1) 105% of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect aggregate undrawn amount and (2) the percentage of the Collateral, in each case prior to the Discharge aggregate undrawn amount required for release of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents applicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents; provided that EFH has delivered an Officer’s Certificate to the Collateral Trustee certifying that the conditions described in this paragraph 1 have been met and that such release of the Collateral does not expressly prohibited under violate the terms of any applicable Secured Debt Document;
(2) with respect to the Note Documents Obligations only, upon satisfaction and discharge of the EFH Indenture as set forth in Section 12.01 of the EFH Indenture or the EFIH Indenture as set forth in Section 12.01 of the EFIH Indenture;
(3) with respect to the Note Obligations only, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8 of the EFH Indenture and/or Article 8 of the EFIH Indenture, as applicable;
(4) with respect to the Note Obligations only, upon payment in full of the Notes and all other Note Obligations that are outstanding, due and payable at the time the Notes are paid in full;
(5) with respect to any Secured Debt Obligations (other than Note Obligations) only, upon payment in connection with an Enforcement Action or full of such Secured Debt and all other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies Secured Debt Obligations in respect of thereof that is outstanding, due and payable at the Collateral, which shall be governed by the previous paragraph), time such Secured Debt is paid in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral full;
(but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, 6) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral, if (a) consent to the release of that Collateral (other than when such release occurs has been given by holders of 66 2/3% of the aggregate principal amount of Parity Lien Debt at the time outstanding voting together as one class, as provided for in connection with the Priority Lien applicable Secured Parties’ foreclosure upon Debt Documents; provided that if an Event of Default under the Notes or other exercise an event of rights and remedies default with respect to any other Secured Debt has occurred and is continuing at the time of the solicitation of any such Collateral)consent, no the consent of holders of 66 2/3% of the aggregate principal amount of Secured Debt as the time outstanding voting together as one class shall also be required, and (b) EFIH has delivered an Officer’s Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained and that such release of the Liens on such Collateral securing does not violate the New Second Lien Convertible Notes shall be made unless terms of any applicable Secured Debt Document;
(7) as to a release of less than all or substantially all of the Collateral, if (A) consent to the release of all Parity Liens (or, at any time after the Discharge of Parity Lien Obligations, consent to the release of all Junior Liens) on such Liens securing the New Second Lien Convertible Notes Collateral has been given by the requisite percentage or number holders of a majority of the holders aggregate principal amount of New Second Parity Lien Convertible Notes Debt at the time outstanding voting as one class, as provided for in the Note Parity Lien Documents (or, at any time after the Discharge of Parity Lien Obligations, holders of a majority of the aggregate principal amount of the Junior Lien Debt at the time outstanding voting together as one class, as provided for in the Junior Lien Documents) and (B) ION EFIH has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained and that such release of the Collateral does not violate the terms of any applicable Secured Debt Document;
(8) as to any Collateral that is sold, transferred or otherwise authorized and permitted disposed of by EFIH in a transaction or other circumstance that is not prohibited by the terms of any applicable Secured Debt Document, at the time of, or immediately prior to, such sale, transfer or other disposition; provided that EFIH has delivered an Officer’s Certificate to the Collateral Trustee certifying that any such sale, transfer or other disposition does not violate the terms of any applicable Secured Debt Document; or
(9) with respect to the Note Obligations only, in whole or in part, with the consent of the Holders of the requisite percentage of Notes in accordance with Section 9.02 of the EFH Indenture and Section 9.02 of the EFIH Indenture and upon delivery of instructions and any other documentation, in each case as required by the Indenture and the Security Documents, in a form satisfactory to the Collateral Trustee. and, in each case, upon request of EFIH, at EFIH’s expense, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) any such documents as provided by EFIH and deliver evidence of such release to EFIH in the form provided by EFIH; provided, however, to the extent EFIH requests the Collateral Trustee to deliver evidence of the release of the Collateral in accordance with this Section 4.1(a), EFIH will deliver to the Collateral Trustee an Officer’s Certificate to the effect that no release of Collateral pursuant to this Section 4.1(a) violated the terms of any Secured Debt Documents.
(b) Other than with respect to any release pursuant to clause (2), (3), (4), (5) or (9) of Section 4.1(a) hereof, the Collateral Trustee agrees for the benefit of EFIH that if the Collateral Trustee at any time receives:
(1) an Officer’s Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then the Collateral Trustee, EFIH’s expense, will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to EFIH on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(c) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (8) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of EFIH, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Lien Debt that constitutes Junior Lien Debt has occurred and is continuing, promptly after the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(5), the Collateral Trustee will deliver a copy of such Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that promptly after the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Parity Lien Debt or Series of Junior Lien Debt for which it acts as Secured Debt Representative.
Appears in 2 contracts
Samples: Collateral Trust Agreement (Energy Future Intermediate Holding CO LLC), Collateral Trust Agreement (EFIH Finance Inc.)
Release of Liens on Collateral. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien (a) The Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of upon the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties :
(i) have released any Lien in whole, on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or the Discharge Date;
(ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted as to a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of all Liens on such Liens securing the New Second Lien Convertible Notes Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents a Securityholder Instruction and (B) ION such release has delivered an officers’ certificate become effective in accordance with the terms of such Securityholder Instruction;
(iii) in accordance with the provisions of this Agreement and the other Operative Agreements as in effect from time to time, as applicable; or
(iv) upon any sale, transfer, exchange or other disposition of Collateral if such sale, transfer, exchange or other disposition is not prohibited by the Priority Lien terms of this Agreement or any other Operative Agreement.
(b) The Collateral Agent, Agent agrees for the Trustee and benefit of Airlines that if the Collateral Agent certifying at any time receives:
(i) an Officers’ Certificate stating that (A) each signing officer has read this Article VI and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all such consents other Operative Agreements, if any, relating to the release of the Collateral have been obtained complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(ii) the proposed instrument or instruments releasing such Lien as to such property are in recordable form, if applicable. then the Collateral Agent shall execute (with such acknowledgements and/or notarizations as are required) and deliver to Airlines (or its designee) such documents and instruments, and take such other actions, in each case as Airlines may reasonably request to evidence such release is otherwise authorized on or before the later of (x) the date specified in such request for such release and permitted (y) the fifth day after the date of receipt of the items required by this Section 6.01(b) by the Note DocumentsCollateral Agent.
(c) The Collateral Agent hereby agrees that in the case of any release pursuant to clause (iv) of Section 6.01(a), if the terms of any such sale, transfer, exchange or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of Airlines, the Collateral Agent will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release.
Appears in 2 contracts
Samples: Security and Collateral Agency Agreement, Security and Collateral Agency Agreement (Expressjet Holdings Inc)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and the cancellation or termination, cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents or, solely to the extent if any agreed to by the issuer of any outstanding letter of credit issued pursuant to any Parity Lien Document, the issuance of a back to back letter of credit in connection with favor of the issuer of any Enforcement Action such outstanding letter of credit in an amount equal to such outstanding letter of credit and issued by a financial institution acceptable to such issuer;
(2) as to any Priority Lien Representative Collateral that is sold, transferred or any Priority Lien Collateral Agent otherwise disposed of by the Issuer, Co-Issuer or any other exercise of any Priority Lien Representative’s Grantor to a Person that is not (either before or any Priority Lien Collateral Agent’s remedies after such sale, transfer or disposition) the Issuer, Co-Issuer or another Note Obligor in respect a transaction or other circumstance that is permitted by Section 4.11 of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensIndenture, if any, and is permitted by all of the Collateral Agentother Parity Lien Documents, for itself, at the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided, that any Priority Lien the Collateral AgentTrustee’s Liens upon the Collateral will not be released if the sale or disposition is to a Person who succeeds to, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral and is substituted for, the Issuer, Co-Issuer or any Guarantor from its obligation other Note Obligor under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself Indenture and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject Notes pursuant to the lien subordination provisions Section 5.01 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(3) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect pursuant to such Collateralclause (2) above), no if directed by an Act of Required Secured Parties (but only upon receipt by the Collateral Trustee of an Officers’ Certificate to the effect that the release was permitted by each applicable Parity Lien Document); provided, that this clause (3) shall not apply to (i) Discharge of Parity Lien Obligations upon payment in full thereof or (ii) sales or dispositions to a Person or a Subsidiary of a Person who succeeds to, and is substituted for, the Issuer, Co-Issuer or any other Note Obligor under the Indenture and the Notes pursuant to Section 5.01 of the Indenture;
(4) as to a release of all or substantially all of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (other than pursuant to clause (1) above), if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Issuer has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained and such release is otherwise authorized and obtained;
(5) if any Grantor (i) ceases to be a Note Guarantor (including as a result of being designated as an Unrestricted Subsidiary or ceasing to be a Subsidiary) as permitted by the Note Indenture, (ii) is sold, transferred or otherwise disposed of to a Person that is not the Issuer or a Restricted Subsidiary as permitted by the Indenture and the other Parity Lien Documents or (iii) is released from its obligations under each of the Security Documents as permitted by the Indenture and each of the other Parity Lien Documents, then the Liens on such Collateral and the obligations of such Grantor under its Guarantee of the Parity Lien Obligations, shall be automatically, unconditionally and simultaneously released; and
(6) if and to the extent required under the Intercreditor Agreements.
(b) The Collateral Trustee agrees for the benefit of the Issuer, Co-Issuer and the other Grantors that if the Collateral Trustee at any time receives an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with, accompanied by the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable, then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Issuer, Co-Issuer or other applicable Grantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Issuer, Co-Issuer or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Parity Lien Debt Default under a Series of Parity Lien Debt has occurred and is continuing, within two Business Days of the receipt by it of any Act of Required Secured Parties pursuant to Section 4.1(a)(3), the Collateral Trustee will deliver a copy of such Act of Required Secured Parties to each Authorized Representative.
(d) Each Authorized Representative hereby agrees that within two Business Days of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Authorized Representative will deliver a copy of such notice to each registered holder of the Series of Parity Lien Debt for which it acts as Authorized Representative.
Appears in 2 contracts
Samples: Collateral Trust Agreement, Collateral Trust Agreement (Toys R Us Inc)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Stock Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Stock Secured Debt and all other Stock Secured Obligations that are outstanding, due and payable at the time all of the Stock Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Stock Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise applicable Stock Secured Debt Documents) of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect all outstanding letters of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Lienscredit, if any, of the issued pursuant to any Stock Secured Debt Documents;
(2) as to any Stock Collateral Agentthat is sold, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any other Pledgor (including by way of merger or consolidation) to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on sale, transfer or disposition) the property Company or assets a Guarantor in a transaction or other circumstance that does not violate Section 4.6 of such Person then the Liens each of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of Supplemental Indentures and is not prohibited by any of the Priority Lien other Stock Secured Parties represented by itDebt Documents, releases any at the time of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any such sale, lease, exchange, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Trustee’s Liens upon the Stock Collateral will not be released if the sale or disposition is subject to Section 801 of the Base Indenture or Section 9.4 of each of the Supplemental Indentures;
(3) as to any Stock Collateral constituting pledged Capital Stock of a Subsidiary of the Company, upon liquidation and dissolution of that Subsidiary in a transaction that is not prohibited by any of the Stock Secured Debt Documents;
(4) as to any Stock Collateral owned by a Guarantor, upon the release of that Guarantor permitted under from its Guarantee in accordance with the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents Stock Secured Debt Documents;
(other than in connection with an Enforcement Action or other exercise 5) as to a release of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Stock Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Stock Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Stock Secured Debt at the time outstanding as provided for in the Note applicable Stock Secured Debt Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained; and
(6) as otherwise permitted by the Indenture and each other Stock Secured Debt Document.
(b) The Collateral Trustee’s Liens upon the Asset Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Asset Secured Debt and all other Asset Secured Obligations that are outstanding, due and payable at the time all of the Asset Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Asset Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Asset Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Asset Secured Debt Documents;
(2) as to any Asset Collateral that is sold, transferred or otherwise disposed of by the Company or any other Pledgor (including by way of merger or consolidation) to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Guarantor in a transaction or other circumstance that does not violate Section 4.6 of each of the Supplemental Indentures and is not prohibited by any of the other Asset Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Trustee’s Liens upon the Asset Collateral will not be released if the sale or disposition is subject to Section 801 of the Base Indenture or Section 9.4 of each of the Supplemental Indentures;
(3) as to any Asset Collateral constituting pledged Capital Stock of a Subsidiary of the Company, upon liquidation and dissolution of that Subsidiary in a transaction that is not prohibited by any of the Asset Secured Debt Documents;
(4) as to any Asset Collateral owned by a Guarantor, upon the release of that Guarantor from its Guarantee in accordance with the terms of the Asset Secured Debt Documents;
(5) as to a release of less than all or substantially all of the Asset Collateral, if consent to the release of all First-Priority Asset Liens on such Asset Collateral has been given by an Act of Required Asset Secured Debtholders, in which case both the Collateral Trustee’s First-Priority Asset Lien and its Junior Asset Lien on such Asset Collateral Agentwill be released;
(6) as to a release of all or substantially all of the Asset Collateral, if (A) consent to release of that Asset Collateral has been given by the requisite percentage or number of holders of each Series of Asset Secured Debt at the time outstanding as provided for in the applicable Asset Secured Debt Documents and (B) the Company has delivered an Officers’ Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained; and
(7) as otherwise permitted by the Indenture and each other Asset Secured Debt Document.
(c) The Collateral Trustee agrees for the benefit of the Company and the other Pledgors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) each signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the applicable Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and, if applicable, (D) in the opinion of such officer, each proposed instrument releasing such Lien as to such property is in recordable form;
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable (as certified in the Officers’ Certificate contemplated in clause (1) above); and
(3) (i) in the case of any release pursuant to Section 4.1(a), prior to the Discharge of First-Priority Stock Secured Obligations, the written confirmation of each First-Priority Stock Lien Representative (or, at any time after the Discharge of First-Priority Stock Secured Obligations, each Junior Stock Lien Representative) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the respective Stock Secured Debt Documents governing the Stock Secured Obligations the holders of which such Stock Secured Debt Representative represents, or (ii) in the case of any release pursuant to Section 4.1(b), prior to the Discharge of First-Priority Asset Secured Obligations, the written confirmation of each First-Priority Asset Lien Representative (or, at any time after the Discharge of First-Priority Asset Secured Obligations, each Junior Asset Lien Representative) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(b) and the respective Asset Secured Debt Documents governing the Asset Secured Obligations the holders of which such Asset Secured Debt Representative represents; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Company or other applicable Pledgor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(c) by the Collateral Trustee.
(d) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a) or Section 4.1(b), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or other applicable Pledgor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Junior Asset Secured Debt has occurred and is continuing and the Collateral Agent certifying Trustee has received notice of such Secured Debt Default, promptly upon but in any event not more than three (3) Business Days after the receipt by it of any Act of Required Asset Secured Debtholders pursuant to Section 4.1(b)(5), the Collateral Trustee will deliver a copy of any such Act of Required Asset Secured Debtholders to each Asset Secured Debt Representative.
(e) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officers’ Certificate from the Company pursuant to Section 4.1(c)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 4.1(c)(3), (B) a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.1(a) or Section 4.1(b), as applicable, or (C) a request for further information from the Note DocumentsCompany reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) or Section 4.1(b), as applicable, and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) promptly upon but in any event not more than three (3) Business Days after the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(d)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Secured Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Issuer and the Guarantors shall be entitled to a release of property and other assets included in the Collateral from the Liens securing the Notes Obligations:
(i) in whole, upon payment in full of the principal of, together with accrued and unpaid interest on, all of the Notes and all other Obligations related thereto under this Indenture, the Guarantees and the Security Documents with respect thereto, that are due and payable at or prior to the terms time such principal, together with accrued and unpaid interest, is paid;
(ii) in part, to enable disposition of such property or assets (other than a disposition to the Issuer or a Guarantor) to the extent not prohibited under Section 4.10 hereof to a Person that is not the Issuer or a Guarantor;
(iii) in part, in the case of a Guarantor that is released from its Guarantee pursuant to this Indenture with respect to all of the Notes, on the property and assets of such Guarantor;
(iv) pursuant to an amendment or waiver in accordance with Article Nine hereof;
(v) in accordance with the applicable provisions of the Security Documents and the Intercreditor Agreement, ; or
(vi) if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect all of the Collateral, in each case prior Notes have been defeased or satisfied and discharged pursuant to Article Eight hereof.
(b) Upon receipt of an Officers’ Certificate and Opinion of Counsel certifying that all conditions precedent under this Indenture and the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensSecurity Documents, if any, to such release have been met 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 itselfany such release undertaken in good faith in reliance upon any such Officers’ Certificate and Opinion of Counsel, and notwithstanding any term hereof or in any Security Document to the contrary, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its shall not be under any obligation to release any such Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateraland security interest, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents execute and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and deliver any such Liens instrument of release, satisfaction or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantortermination, then the Collateral Agent, for itself unless and the Parity Lien Secured Parties, shall be granted a Lien on any until it receives such Collateral, subject to the lien subordination provisions Officers’ Certificate and Opinion of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsCounsel.
Appears in 1 contract
Samples: Indenture (Manitowoc Co Inc)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released:
(i) in whole, upon (A) payment in full and discharge of all outstanding Notes (or upon a Legal Defeasance or Covenant Defeasance of the Notes as set forth under Article 8 of the Indenture or a satisfaction and discharge of the Indenture as set forth under Article 11 of the Indenture) and payment in full and discharge of all other outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Notes and such other Parity Lien Debt is paid in full and discharged (or, in the case of the Notes, defeased or discharged in accordance with the Indenture) and (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(ii) as to any Collateral that is sold, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any other Grantor to a Person that is not (either before or after such Priority sale, transfer or disposition) another Grantor in a transaction or other circumstance that is permitted by all of the Parity Lien Collateral Agent releases its Lien on Documents automatically at the property or assets time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of (but excluding any Collateral by any Guarantor permitted under the terms transaction subject to Section 5.01 of the Priority Indenture where the recipient is required to become the obligor on the Notes or a Guarantor or any similar provision contained in any other Parity Lien Documents and not expressly prohibited under Document) to the terms extent of the Note Documents (other than in connection with an Enforcement Action interest sold, transferred or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursotherwise disposed of; provided that, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and provided in the Parity Lien Secured PartiesSecurity Documents, shall be granted a Lien on the Collateral Trustee’s Liens will attach to the proceeds received in respect of any such Collateralsale, transfer or other disposition, subject to the lien subordination provisions priorities set forth in the Intercreditor Agreement and Section 3.4;
(iii) upon completion of any Asset Sale Offer (as defined in the Indenture) conducted in compliance with Section 4.10 of the Intercreditor AgreementIndenture, to the extent any Net Proceeds (as defined in the Indenture) constituted Excess Proceeds (as defined in the Indenture) with respect to such Asset Sale Offer and remain unexpended following the Trustee, for itself and for the holders consummation of the New Second Lien Convertible Notes, shall be granted an additional guaranty, such Asset Sale Offer;
(iv) as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on to less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies Collateral, with respect to any such Collateral), no if consent to the release of such Liens of the Liens Collateral Trustee on such Collateral securing has been given by an Act of Required Debtholders;
(v) as to all or substantially all of the New Second Lien Convertible Notes shall be made unless Collateral, with respect to any such Collateral, if (A) consent to the release of such Liens securing of the New Second Lien Convertible Notes Collateral Trustee on such Collateral has been given by the requisite percentage or number of holders of Notes (as certified in writing to the Collateral Trustee by the Notes Trustee, on behalf of the holders of New Second Notes) and the requisite percentage or number of holders of each other Series of Parity Lien Convertible Notes Debt outstanding at such time as permitted by, and in accordance with, the time outstanding applicable Parity Lien Documents (as provided for certified in writing to the Note Documents Collateral Trustee by the applicable Parity Lien Representative, on behalf of the applicable holders of Parity Lien Debt), and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Collateral Trustee certifying that the conditions described in this clause (v) have been met; or
(vi) if applicable, as and when required in accordance with the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if in connection with any such release the Collateral Trustee receives:
(i) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral Agenthave been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(ii) the proposed instrument or instruments releasing such Lien as to such property, then the Collateral Trustee will, in respect of the Collateral so released and at the cost and expense of the Grantors, execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Company or other applicable Grantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(i) in the case of any release pursuant to Section 4.1(a)(ii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(ii) at any time when a Parity Lien Debt Default has occurred and is continuing, promptly after the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(iv), the Collateral Agent certifying Trustee will deliver a copy of such Act of Required Debtholders to each Parity Lien Representative.
(d) Each Parity Lien Representative hereby agrees that all within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(ii), such consents have been obtained and Parity Lien Representative will deliver a copy of such release is otherwise authorized and permitted by notice to each registered holder of the Note DocumentsSeries of Parity Lien Debt for which it acts as Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens on the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action transferred or otherwise disposed of by any Priority Lien Representative either of the Issuers or any Priority Lien Collateral Agent Guarantor (including indirectly, by way of a sale or any other exercise disposition of Capital Stock of SCOC or a Guarantor) to a Person that is not (either before or after such sale, transfer or disposition) Solo or a Restricted Subsidiary of Solo in a transaction or other circumstance that is not prohibited by either Section 4.10 of the Indenture or by the terms of any Priority Lien Representativeapplicable Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is subject to Section 5.01 of the Indenture;
(3) upon completion of any Priority Lien Collateral Agent’s remedies Repurchase Offer (as defined in the Indenture) conducted in compliance with Section 3.08 of the Indenture to the extent any Net Proceeds (as defined in the Indenture) constituted Excess Proceeds (as defined in the Indenture) with respect to such Repurchase Offer (as defined in the Indenture) and remain unexpended following the consummation of such Repurchase Offer;
(4) as to less than all or substantially all of the Collateral, in each case prior if consent to the release of all Priority Liens (or, at any time after the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject consent to the terms release of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assetsall Subordinated Liens) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral has been given by an Act of Required Debtholders;
(but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, 5) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note Documents applicable Secured Debt Documents, and (B) ION Solo has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained, or
(6) if and to the extent required by Section 2.05(a) of the Intercreditor Agreement; and, in each such case, upon request of Solo, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to Solo; provided, however, to the extent Solo requests the Collateral Trustee to deliver evidence of the release of Collateral in accordance with this Section 4.1(a), Solo will deliver to the Collateral Trustee an Officers’ Certificate to the effect that such release of Collateral pursuant to this Section 4.1(a) did not violate the terms of any applicable Secured Debt Document or the ABL Debt Documents. Notwithstanding the foregoing, subject to the Intercreditor Agreement, all Liens will remain attached to and enforceable against all proceeds of any sale or disposition.
(b) The Collateral Trustee agrees for the benefit of the Issuers and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is otherwise authorized necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and permitted all other Secured Debt Documents and the ABL Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Issuers or Guarantors as soon as practicable, but no later than the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Note DocumentsCollateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Issuers or Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Subordinated Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(4), the Collateral Trustee will deliver a copy of such Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Debt or Series of Subordinated Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject to (a) The Liens on the terms Collateral securing the New Third Lien Secured Notes will be released automatically and without the need for any further action by any Person under any one or more of the Intercreditor Agreementfollowing circumstances:
(i) in whole, if upon payment in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect full of the Collateralprincipal of, in each case together with accrued and unpaid interest on, the New Third Lien Secured Notes and all other Third Lien Obligations that are due and payable at or prior to the Discharge of Priority Lien Obligationstime such principal, such Priority Lien Collateral Agent, for itself or on behalf of together with accrued and unpaid interest are paid;
(ii) any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automaticallysold, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, Company or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any a Subsidiary Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of , in a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations transaction permitted by the Priority Third Lien Indenture, the New Third Lien Secured Parties Notes and the First Lien/Second Lien/Third Lien Intercreditor Agreements (except to the Company or another Subsidiary Guarantor), with respect to only such Collateral sold but not on any Proceeds thereof;
(iii) all or substantially all of the Equity Interests of the any Subsidiary Guarantor shall be sold, transferred or otherwise disposed of by the Company or any Subsidiary Guarantor in a transaction permitted by the Amended Credit Agreement (except to the Company or a Subsidiary Guarantor), with respect only to the Collateral of the Company or such Subsidiary Guarantor, as the case may be;
(other than when such release occurs in connection with iv) if a Subsidiary Guarantor otherwise ceases to be a Grantor pursuant to the Priority Lien Secured Parties’ foreclosure upon terms of the U.S. Security Agreement or other exercise of rights and remedies Canadian Security Agreement, with respect to only the Collateral of the Company or such CollateralSubsidiary Guarantor but not on any Proceeds thereof;
(v) if a Subsidiary Guarantor otherwise ceases to be a Subsidiary Guarantor in accordance with the terms of this Third Lien Indenture, with respect to only the Collateral of such Subsidiary Guarantor but not on any Proceeds thereof;
(vi) upon such property or other asset being released from the Liens securing the First Lien Obligations (excluding in the case of the payment thereof);
(vii) as required by the terms of any applicable intercreditor agreement, no including a full release of the Liens on Collateral upon the Discharge of First Lien Obligations; or
(viii) upon such Collateral securing the New Second Lien Convertible Notes shall be made unless property or asset becoming an Excluded Asset.
(Ab) consent Upon delivery of an Officer’s Certificate and Opinion of Counsel to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent and the Third Lien Trustee certifying that all such consents have been obtained and such release is otherwise authorized and permitted by this Third Lien Indenture, the Note DocumentsCollateral Agent and the Third Lien Trustee shall execute and deliver such evidence of release as may be reasonably requested by the Company, at the Company’s sole cost and expense.
Appears in 1 contract
Samples: Third Lien Indenture (Bed Bath & Beyond Canada L.P.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash and discharged (other than contingent indemnity obligations for which no claim has been made), (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(2) as to any Collateral of an Obligor that is (A) released as a Guarantor under each Parity Lien Document and (B) not obligated (as primary obligor or guarantor) with respect to any other Parity Lien Obligations and so long as the respective release does not violate the terms of any Parity Lien Document which then remains in effect, and subject to the terms satisfaction of the requirements set forth in Section 4.01(a)(i) of the Intercreditor Agreement;
(3) as to any Collateral of an Obligor that is sold, transferred or otherwise disposed of by an Obligor to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Subsidiary in a transaction or other circumstance that does not violate Section 4.12 of the Indenture (other than the obligation to apply proceeds of such Collateral Sale (as defined in the Indenture) as provided in such Section 4.12 of the Indenture) and is permitted by all of the other Parity Lien Documents, and subject to the satisfaction of the requirements set forth in Section 4.01(a)(i) of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of at the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Section 5.01 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company, as applicable, has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained;
(7) as to any Collateral that becomes Excluded Property; or
(8) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Obligors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate (which the Collateral Trustee shall be entitled to rely upon) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and (D) such release is otherwise authorized and permitted of Collateral did not violate the terms of any applicable Parity Lien Document; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Note DocumentsCollateral Trustee of the items required by this Section 4.1(b), upon request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the applicable Obligor; provided that, in the case of a release of Liens under Section 4.1(a)(8), the Collateral Trustee shall execute and deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Priority Lien Agent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to Section 4.1(a)(3), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the applicable Obligor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(4), the Collateral Trustee will deliver a copy of such Act of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (Chesapeake Energy Corp)
Release of Liens on Collateral. Subject to (a) The Collateral Trustee’s Liens upon the terms of the Intercreditor AgreementCollateral will be released as follows:
(1) in whole, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to upon the Discharge of Priority Lien Obligationsthe BNPP Obligations irrespective of the existence, such Priority Lien Collateral Agentvel non, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or Crest Obligation at such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject time;
(2) as to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of all Liens on such Liens securing the New Second Lien Convertible Notes Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents Administrative Agent and (B) ION such release has delivered become effective in accordance with the terms of such consent;
(3) as to (A) deposits in any cash collateral account that are to be applied to fund any mandatory prepayment that becomes required as to any Secured Obligations as a result of a sale of assets, concurrently with such application, so long as effective provision is made for apportionment of such funding to all holders of Secured Obligations entitled to participate in such mandatory prepayment or purchase offer in accordance with their respective entitlements under the Secured Obligation Documents; and (B) deposits in any cash collateral account that constitute proceeds from an officers’ certificate asset sale that are permitted under the Secured Obligation Documents to be reinvested or otherwise are not required under the Priority Lien Secured Obligation Documents to be reinvested or otherwise are not required to be applied to a mandatory prepayment or purchase offer in respect of any Secured Obligations, concurrently with such reinvestment in assets constituting Collateral Agent, or other permitted use under the Trustee Secured Obligation Documents;
(4) in accordance with the provisions of this Agreement and the other Security Documents as in effect from time to time, as applicable;
(5) upon any sale, transfer or other disposition of Collateral Agent certifying that all if such consents have been obtained and such release sale, transfer or other disposition is not prohibited by the terms of the BNPP Credit Agreement or any other Secured Obligation Document; or
(6) as otherwise authorized and permitted by the Note DocumentsBNPP Credit Agreement and each other Secured Obligation Document.
(b) The Collateral Trustee hereby agrees that, in the case of any release pursuant to clause (5) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release.
Appears in 1 contract
Release of Liens on Collateral. Subject to (a) The Priority Liens upon the terms Collateral will be automatically released in each of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the following circumstances:
(1) as to all Collateral, in each case prior to upon the Discharge of Priority Lien Obligations;
(2) as to any Collateral of the Company, any Grantor or any Guarantor that is sold, transferred or otherwise disposed of by the Company, any Grantor or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Company, a Grantor or a Guarantor in a transaction or other circumstance that is permitted by the Senior Credit Facility, the Term Loan Credit Facility and the other Priority Lien Documents, upon consummation of such sale, transfer or other disposition;
(3) as to any Collateral Agentof a Grantor or Guarantor that is (A) released as a Grantor or Guarantor, for itself as applicable, under each Priority Lien Document and (B) not obligated (as primary obligor or on behalf guarantor) with respect to any other Priority Lien Obligations and so long as the respective release does not violate the terms of any Priority Lien Document which then remains in effect, upon the release of such Grantor or Guarantor, as applicable;
(4) as to any other release of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensCollateral, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Priority Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Priority Lien Documents and (B) ION the Company has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained, upon satisfaction of clause (A) and (B) hereof; or
(5) as to any Collateral of the Company, any Grantor or any Guarantor that is foreclosed upon by the Collateral Agent or against which the Collateral Agent otherwise exercises its rights or remedies (including in connection with an Enforcement Action) (whether or not any Insolvency or Liquidation Proceeding is pending at the time) in each case, which results in a disposition of such Collateral, upon such foreclosure.
(b) The Collateral Agent agrees for the benefit of the Company and the other Grantors that, if the Collateral Agent at any time receives:
(1) an Officer’s Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating thereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Priority Lien Documents, if any, to the release of the Collateral and the execution of the documents described in (2) below have been satisfied and (C) in the opinion of such Officer, such conditions precedent, if any, have been satisfied; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Agent of the items required by this Section 4.1(b), upon written request of the Company, the Collateral Agent will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release is otherwise authorized to the Company or other applicable Grantor.
(c) The Collateral Agent hereby agrees that in the case of any release pursuant to Section 4.1(a)(2), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and permitted by at the Note Documentsexpense of the Company or other applicable Grantor, the Collateral Agent will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release.
Appears in 1 contract
Release of Liens on Collateral. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien The Notes Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its 's Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders Notes Secured Parties (and the Subsidiary Guarantees in the case of clauses (a) through (d) below) will be automatically and unconditionally released and discharged under any one or more of the New Second following circumstances:
(a) in whole, upon satisfaction and discharge of this Indenture in accordance with Section 8.01;
(b) in whole, upon a legal defeasance or covenant defeasance of the Notes in accordance with Section 8.02;
(c) in whole, upon payment in full and discharge of all Notes outstanding under this Indenture and all Notes Obligations that are outstanding, due and payable under this Indenture at the time the Notes are paid in full and discharged;
(d) in whole or in part, with the consent of the Holders of the requisite percentage of Notes in accordance with Section 9.02;
(e) with respect to any Collateral if such Collateral is sold, transferred or otherwise disposed of by the Company or any Subsidiary Guarantor to any Person (other than the Company or a Subsidiary Guarantor) that is not and is not required to be a Subsidiary Guarantor in a transaction permitted by the Senior Credit Agreement, this Indenture and the First Lien Convertible NotesIntercreditor Agreement, including any accounts receivable and related assets sold to the Receivables SPV pursuant to the Receivables Sale Agreement;
(f) in whole or in part, if the Credit Agreement Agent releases or will release its lien on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notesconcurrently therewith, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when unless such release occurs in connection with a discharge in full in cash of the Priority Lien Secured Parties’ Senior Credit Agreement, which discharge is not in connection with a foreclosure upon of, or other exercise of rights and remedies with respect to, Collateral by the Credit Agreement Secured Parties;
(g) with respect to such Collateral), no release of the Liens on the assets of a Subsidiary Guarantor, upon designation of such Subsidiary Guarantor as an Unrestricted Subsidiary pursuant to the terms of this Indenture, or upon such Subsidiary Guarantor otherwise being released from its Subsidiary Guarantee in accordance with the terms of this Indenture;
(h) with respect to any Collateral, if such Collateral securing the New Second Lien Convertible Notes shall be made unless constitutes or becomes an Excluded Asset; and
(Ai) consent with respect to Liens on any asset to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsextent not constituting Collateral.
Appears in 1 contract
Samples: Indenture (Gray Television Inc)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash and discharged (other than contingent indemnity obligations for which no claim has been made), (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreement, if in connection applicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(2) as to any Collateral of a Guarantor that is (A) released as a Guarantor under each Parity Lien Document and (B) not obligated (as primary obligor or guarantor) with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or respect to any other exercise of any Priority Parity Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of Obligations and so long as the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to respective release does not violate the terms of any Parity Lien Document which then remains in effect;
(3) as to any Collateral of the Intercreditor AgreementCompany or a Guarantor that is sold, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any Guarantor to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on sale, transfer or disposition) the property Company or assets of such Person then a Restricted Subsidiary (as defined in the Liens Indenture) of the Collateral Agent with respect Company in a transaction or other circumstance that does not violate Section 4.10 of the Indenture (other than the obligation to the property or assets (but excluding, for the avoidance of doubt, any Liens on the apply proceeds of such property or assetsAsset Sale (as defined in the Indenture) as provided in such Section 4.10 of the Indenture) and is permitted by all of the other Parity Lien Documents, at the time of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Article 5 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Collateral Trustee certifying that all such necessary consents have been obtained;
(7) as to any Collateral that becomes an Excluded Asset (as defined in the Indenture as in effect on the date hereof); or
(8) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate (which the Collateral Trustee shall be entitled to rely upon) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and (D) such release of Collateral did not violate the terms of any applicable Parity Lien Document; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of the items required by this Section 4.1(b), upon request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(8), the Collateral Trustee shall execute and deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Priority Lien Collateral AgentAgent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to Section 4.1(a)(3), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(4), the Collateral Agent certifying that all Trustee will deliver a copy of such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsAct of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject to (a) The Collateral Trustee’s Liens upon the terms Collateral will be released in any of the Intercreditor Agreementfollowing circumstances:
(1) in whole, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to upon the Discharge of Priority Pari Passu Lien Obligations;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by the Borrower or any Guarantor to a Person that is not (either before or after such Priority Lien Collateral Agentsale, for itself transfer or on behalf of any disposition) the Borrower or a Subsidiary (as defined under the Indenture) or an Affiliate of the Priority Lien Secured Parties, releases any of its Liens on any part Borrower in a transaction or other circumstance that complies with Section 7.05 of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensCredit Agreement, if any, and is permitted by all of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second other Pari Passu Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets Documents (but excluding, for the avoidance of doubt, any Liens on transaction that would cause a default or event of default under any Pari Passu Lien Document is a transaction that is not permitted by such Pari Passu Lien Document), at the proceeds time of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementinterest sold, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, transferred or otherwise disposed of;
(3) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect pursuant to such Collateralclause (2) above), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Pari Passu Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Pari Passu Lien Documents or (B) all Pari Passu Liens on such Collateral have been automatically released pursuant to the Pari Passu Lien Documents; provided, that this clause (3) shall not apply to Discharge of Pari Passu Lien Obligations upon payment in full thereof;
(4) as to a release of all or substantially all of the Collateral (other than pursuant to clause (1) above), if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Pari Passu Lien Debt at the time outstanding as provided for in the applicable Pari Passu Lien Documents and (B) ION the Borrower has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained obtained;
(5) if any Guarantor is released from its obligations under each of the Pari Passu Lien Documents, then the Pari Passu Liens on all Collateral owned by such Guarantor and the obligations of such Guarantor under its Guarantee of the Pari Passu Lien Obligations, shall be automatically, unconditionally and simultaneously released; and
(6) otherwise in accordance with the terms of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Borrower and the Guarantors that if the Collateral Trustee at any time receives all of the following:
(1) an Officers’ Certificate stating that the conditions precedent in this Agreement and all other Pari Passu Lien Documents, if any, relating to the release of the Collateral have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) prior to the Discharge of Pari Passu Lien Obligations, the written confirmation of each Pari Passu Lien Representative (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above and upon receipt of such certificates and opinions as may be required by the applicable Pari Passu Lien Document governing such Pari Passu Lien Representative) that, in its view, such release is otherwise authorized and permitted by Section 4.1(a) and the Note Documentsrespective Pari Passu Lien Documents governing the Pari Passu Lien Obligations the holders of which such Pari Passu Lien Representative represents; then the Collateral Trustee will execute (at the sole cost and expenses of the Borrower or such Guarantor and with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or the applicable Guarantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Borrower or the applicable Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Pari Passu Lien Debt Default under a Series of Pari Passu Lien Debt has occurred and is continuing, the Collateral Trustee will make best efforts to deliver within one Business Day (and in any event, as soon as reasonably practicable), of the receipt by it of any Act of Required Pari Passu Lien Parties pursuant to Section 4.1(a)(3), the Collateral Trustee will deliver a copy of such Act of Required Pari Passu Lien Secured Parties to each Pari Passu Lien Representative.
(d) Each Pari Passu Lien Representative hereby agrees that as soon as reasonably practicable after receipt of an Officers’ Certificate from the Borrower pursuant to Section 4.1(b)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 4.1(b)(3), (B) a written statement that such release is not permitted by Section 4.1(a) or (C) a request for further information from the Borrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Pari Passu Lien Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens on the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents;
(2) (a) as to any Collateral that is sold, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on by the property Company or assets any Guarantor (including indirectly, by way of such Person then the Liens a sale or other disposition of Equity Interests of the Collateral Agent with respect Company or a Guarantor) to a Person that is not (either before or after such sale, transfer or disposition) the property Company or assets (but excluding, for a Guarantor in a transaction or other circumstance that is not prohibited by either Section 10.04 of the avoidance of doubt, any Liens on the proceeds of such property Term Credit Agreement or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to by the terms of any applicable Secured Debt Documents, at the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf time of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any such sale, lease, exchange, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is pursuant to Section 10.03 of the Term Credit Agreement under circumstances where the transferee is the Company or a Guarantor, and (b) as to any Collateral owned by any Guarantor permitted under Person that ceases to be a Subsidiary of the Parent or a ceases to be a Credit Party in either case in a transaction or other circumstance that is not prohibited by the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral Term Credit Agreement or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or other applicable Secured Debt Documents;
(ii3) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject [reserved];
(4) as to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of all Priority Liens (or, at any time after the Discharge of Priority Lien Obligations, consent to the release of all Subordinated Liens) on such Liens securing the New Second Lien Convertible Notes Collateral has been given by an Act of Required Debtholders and (B) the requisite percentage Company has delivered an Officer’s Certificate to the Collateral Trustee certifying that all requirements for such release (including that such Collateral constitutes less than all or number substantially all of the holders Collateral) have been complied with;
(5) as to all or substantially all of New Second Lien Convertible Notes the Collateral, if (A) release of that Collateral is permitted by each Series of Secured Debt at the time outstanding as provided for in the Note Documents applicable Secured Debt Documents, and (B) ION the Company has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all requirements for such consents release have been obtained complied with;
(6) if and to the extent (a) required by all Series of Secured Debt at the time outstanding (including pursuant to Section 13.11 of the Term Credit Agreement) or (b) upon request of the Company, if such release is otherwise authorized permitted for all Series of Secured Debt at the time outstanding without the consent of the holders thereof, in each case as provided for in the applicable Secured Debt Documents; or
(7) if and permitted to the extent required by Section 5.1 of the Note Intercreditor Agreement; and, in each such case, upon request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company; provided, however, to the extent the Company requests the Collateral Trustee to deliver evidence of the release of Collateral in accordance with this Section 4.1(a), the Company will deliver to the Collateral Trustee an Officer’s Certificate to the effect that such release of Collateral pursuant to this Section 4.1(a) did not violate the terms of any applicable Secured Debt Document. Notwithstanding the foregoing, subject to the Intercreditor Agreement, all Liens will remain attached to and enforceable against all proceeds of any sale or disposition to the extent provided in the other Secured Debt Documents.
(b) The Collateral Trustee agrees for the benefit of the Company and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officer’s Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with, (C) no Secured Debt Default has occurred and is continuing of the date of such Officer’s Certificate or will result from the release of such Lien, and (D) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) upon the reasonable request of the Collateral Trustee, a legal opinion of Company counsel to the effect that:
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee's Liens upon the Collateral will be released in any one or more of the following circumstances:
(1) in whole, upon (i) payment in full and discharge of all outstanding Collateral Trust Obligations that are outstanding, due and payable at the time the entire outstanding principal amount under all Collateral Trust Debt Documents (other than in respect of Hedging Obligations and Cash Management Obligations) is paid in full and discharged and (ii) termination or expiration of all commitments to extend credit under all Collateral Trust Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor applicable Collateral Trust Debt Documents) of all outstanding letters of credit issued pursuant to any Collateral Trust Debt Documents, or the making of other arrangements satisfactory to each issuer of such letters of credit;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by any Pledgor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Guarantor in a transaction or other circumstance that complies with Section 4.10 of the Indenture (if applicable) and is not prohibited by any of the other Collateral Trust Debt Documents or by the Applicable Credit Agreement, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of (and the Collateral Trustee may rely conclusively on a certificate to that effect, or to the effect that the proviso to this clause (2) is not applicable, provided to it by a Pledgor without inquiry); provided that, if the Indenture is then in connection existence, the Collateral Trustee's Liens upon the Collateral will not be released pursuant to this clause (2) if the sale or disposition is subject to Section 5.01 of the Indenture and in accordance with any Enforcement Action by any Priority Lien Representative such section such Collateral is transferred to a Successor Company or any Priority Lien Collateral Agent a Successor Guarantor (as each such term is defined in the Indenture);
(3) as to a release of less than all or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect substantially all of the Collateral, in each case prior if consent to the Discharge release of Priority Lien Obligationsall Collateral Trust Parity Liens on such Collateral has been given by an Act of Required Collateral Trust Holders;
(4) as to a release of all or substantially all of the Collateral, such Priority Lien if the Borrower has delivered an Officer's Certificate to the Collateral Agent, Trustee certifying that consent to the release of that Collateral has been given by the requisite percentage or number of holders of each Series of Collateral Trust Debt at the time outstanding as provided for itself or on behalf of in the applicable Collateral Trust Debt Documents;
(5) notwithstanding any of the Priority Lien Secured Partiesforegoing, if the Applicable Controlling Agent is exercising its rights or remedies with respect to the Collateral and releases any of its the Parity Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf Liens are released in connection with the sale of any Collateral with the approval of the Priority Applicable Controlling Agent while an event of default under any Parity Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien ObligationsObligations has occurred and is continuing, then the Liens, if any, of the Collateral Agent, for itself, the Trustee Junior Liens and for the benefit of the holders of the New Second Lien Convertible Notes, all other Parity Liens (other than Liens securing Credit Agreement Obligations) on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, Collateral shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral the Applicable Controlling Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral the Applicable Controlling Agent releases its any Parity Lien on the property or assets of such Person or such Liens are released in connection with the sale of Collateral with the approval of the Applicable Controlling Agent while an event of default under any Parity Lien Obligations has occurred and is continuing, then the Junior Liens of the Collateral Agent and all other Parity Liens (other than Liens securing Credit Agreement Obligations) with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as such Parity Liens;
(6) to the extent that any Guarantor is released from its guarantee of any Collateral Trust Parity Lien Debt or Junior Lien Debt in accordance with the provisions of the Indenture or the other applicable Collateral Trust Debt Documents, the Liens on Collateral of such Priority Guarantor securing such guarantee shall be automatically released;
(7) to the extent any Collateral is comprised of property that is subject to a Lien permitted by clauses (2), (3), (5), (8), (11), (12), (14), (16), (18), (19), (21)(A), (21)(B), (22) or (28), or permitted by clause (20) (but only to the extent relating to the refinancing, refunding, extension, renewal or replacement of Liens permitted under any of the other clauses referred to in this clause (7)), of the definition of Permitted Liens (as defined in the Indenture) and such Lien is not prohibited by any other applicable Collateral Agent. Subject Trust Debt Document, if the holder of such Lien requires such release (and the Collateral Trustee may rely conclusively on a certificate to that effect, or to the effect that the proviso to this clause (7) is not applicable, provided to it by a Pledgor without inquiry) (provided, that, if the Indenture is then in existence, shares of Capital Stock shall not be automatically released except in respect of Liens permitted by clauses (2), (11), (19), (21)(A), (21)(B) or (28) of the definition of Permitted Liens or permitted by clause (20) thereof (but only to the extent relating to Liens permitted under any of the other clauses of this proviso));
(8) to the extent the Credit Agreement Collateral Agent releases Liens on any Collateral in an aggregate amount in any fiscal year not to exceed $3,500,000 pursuant to Section 9.02(c) of the Existing Credit Agreement or any similar provision of any other Credit Agreement, the Collateral Trustee's Liens on such Collateral shall be automatically released;
(9) to the extent that, pursuant to the terms of the Applicable Credit Agreement, the Credit Agreement Collateral Agent executes and delivers confirmations acknowledging that Collateral consisting of licensed or leased property is subject to the rights of the applicable licensee or lessee, the Collateral Trustee shall automatically be deemed to have provided an equivalent acknowledgment;
(10) if, pursuant to the terms of the ABL Intercreditor Agreement, if any Priority Lien Liens on Current Asset Collateral Agent, for itself or on behalf are released in connection with a sale thereof while an event of any of default under the Priority Lien Secured Parties represented by itDebt Documents has occurred and is continuing, releases any the Collateral Trustee's Lien on such Current Asset Collateral shall be automatically released; or
(11) if, pursuant to the terms of its the ABL Intercreditor Agreement, Liens on any part Fixed Asset Collateral are released in connection with a sale thereof while an event of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of default under the Priority Lien Secured Parties represented by itDebt Documents has occurred and is continuing, releases the Junior Liens on such Fixed Asset Collateral shall be automatically released. The Collateral Trust Security Documents provide that the Liens securing the Collateral Trust Obligations will extend to the proceeds of any Guarantor from its obligations under its guaranty sale of Collateral. As a result, the Priority Lien Obligations, Collateral Trustee's Liens apply to the proceeds of any such Collateral received in connection with any sale or other disposition of assets described in the preceding paragraphs.
(b) The Collateral Trustee agrees for the benefit of the Borrower and the other Guarantors that if the Collateral Trustee at any time receives:
(1) an Officer's Certificate and an opinion of counsel (which counsel may be an employee of or counsel to a Pledgor and which opinion may be subject to customary assumptions, exceptions and qualifications) stating that (A) the Person making such certificate or opinion has read Section 4.1 (or Section 4.4, as applicable) of this Agreement, (B) such Person has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in Section 4.1 (or Section 4.4, as applicable) to the execution and delivery of the applicable release by the Collateral Trustee have been satisfied, and (C) in the opinion of such Person, such conditions precedent, if any, have been satisfied; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and, subject to Section 4.1(c), deliver such release to the Borrower or other applicable Guarantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day (or such shorter period as the Collateral Trustee may agree) after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that, in the case of any release pursuant to clause (2), (3) or (6) of Section 4.1(a) in connection with a sale, lease, exchange, transfer or other disposition of any Collateral, or pursuant to clause (1) of Section 4.1(a) or Section 4.4 in connection with a refinancing of the applicable Collateral by any Guarantor permitted under Trust Debt, if the terms of any related sale, transfer or other disposition or refinancing require the Priority Lien Documents and not expressly prohibited under the terms payment of the Note Documents (other than in connection purchase price or proceeds of Indebtedness to be contemporaneous with an Enforcement Action the delivery of the applicable release, then, at the written request of and at the expense of the Borrower or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or followingapplicable Guarantor, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless Trustee will either (A) consent to be present at and deliver the release at the closing of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage transaction or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to deliver the Priority Lien Collateral Agent, release under customary escrow arrangements that permit such contemporaneous payment and delivery of the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documents.release; and
Appears in 1 contract
Samples: Collateral Trust Agreement (Harland Clarke Holdings Corp)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released:
(i) in whole, upon (A) payment in full and discharge of all outstanding Notes (or upon a Legal Defeasance or Covenant Defeasance of the Notes as set forth under Article 8 of the Indenture or a satisfaction and discharge of the Indenture as set forth under Article 11 of the Indenture) and payment in full and discharge of all other outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Notes and such other Parity Lien Debt is paid in full and discharged (or, in the case of the Notes, defeased or discharged in accordance with the Indenture) and (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(ii) as to any Collateral that is sold, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any other Grantor to a Person that is not (either before or after such Priority sale, transfer or disposition) another Grantor in a transaction or other circumstance that is permitted by all of the Parity Lien Collateral Agent releases its Lien on Documents automatically at the property or assets time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of (but excluding any Collateral by any Guarantor permitted under the terms transaction subject to Section 5.01 of the Priority Indenture where the recipient is required to become the obligor on the Notes or a Guarantor or any similar provision contained in any other Parity Lien Documents and not expressly prohibited under Document) to the terms extent of the Note Documents (other than in connection with an Enforcement Action interest sold, transferred or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursotherwise disposed of; provided that, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and provided in the Parity Lien Secured PartiesSecurity Documents, shall be granted a Lien on the Collateral Trustee’s Liens will attach to the proceeds received in respect of any such Collateralsale, transfer or other disposition, subject to the lien subordination provisions priorities set forth in the Intercreditor Agreement and Section 3.4;
(iii) upon completion of any Asset Sale Offer (as defined in the Indenture) conducted in compliance with Section 4.10 of the Intercreditor AgreementIndenture, to the extent any Net Proceeds (as defined in the Indenture) constituted Excess Proceeds (as defined in the Indenture) with respect to such Asset Sale Offer and remain unexpended following the Trustee, for itself and for the holders consummation of the New Second Lien Convertible Notes, shall be granted an additional guaranty, such Asset Sale Offer;
(iv) as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on to less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies Collateral, with respect to any such Collateral), no if consent to the release of such Liens of the Liens Collateral Trustee on such Collateral securing has been given by an Act of Required Debtholders;
(v) as to all or substantially all of the New Second Lien Convertible Notes shall be made unless Collateral, with respect to any such Collateral, if (A) consent to the release of such Liens securing of the New Second Lien Convertible Notes Collateral Trustee on such Collateral has been given by the requisite percentage or number of holders of Notes (as certified in writing to the Collateral Trustee by the Notes Trustee, on behalf of the holders of New Second Notes) and the requisite percentage or number of holders of each other Series of Parity Lien Convertible Notes Debt outstanding at such time as permitted by, and in accordance with, the time outstanding applicable Parity Lien Documents (as provided for certified in writing to the Note Documents Collateral Trustee by the applicable Parity Lien Representative, on behalf of the applicable holders of Parity Lien Debt), and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Collateral Trustee certifying that the conditions described in this clause (v) have been met; or
(vi) if applicable, as and when required in accordance with the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if in connection with any such release the Collateral Trustee receives:
(i) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral Agenthave been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(ii) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable, then the Collateral Trustee will, in respect of the Collateral so released and at the cost and expense of the Grantors, execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Company or other applicable Grantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(i) in the case of any release pursuant to Section 4.1(a)(ii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(ii) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(iv), the Collateral Agent certifying Trustee will deliver a copy of such Act of Required Debtholders to each Parity Lien Representative.
(d) Each Parity Lien Representative hereby agrees that all within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(ii), such consents have been obtained and Parity Lien Representative will deliver a copy of such release is otherwise authorized and permitted by notice to each registered holder of the Note DocumentsSeries of Parity Lien Debt for which it acts as Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens on the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Debt Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action transferred or otherwise disposed of by any Priority Lien Representative the Issuer or any Priority Lien Collateral Agent Guarantor (including indirectly, by way of a sale or any other exercise disposition of Capital Stock of a Guarantor) to a Person that is not (either before or after such sale, transfer or disposition) the Issuer or a Restricted Subsidiary of the Issuer in a transaction or other circumstance that is not prohibited by either Section 4.06 of the Indenture or by the terms of any Priority Lien Representativeapplicable Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is subject to Section 5.01 of the Indenture;
(3) upon completion of any Priority Lien Collateral Agent’s remedies Repurchase Offer (as defined in the Indenture) conducted in compliance with Section 3.09 of the Indenture to the extent any Net Proceeds constituted Excess Proceeds (as defined in the Indenture) with respect to such Repurchase Offer and remain unexpended following the consummation of such Repurchase Offer;
(4) as to less than all or substantially all of the Collateral, in each case prior if consent to the release of all Priority Liens (or, at any time after the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject consent to the terms release of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assetsall Subordinated Liens) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral has been given by an Act of Required Debtholders;
(but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, 5) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note Documents applicable Secured Debt Documents, and (B) ION the Issuer has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained, or
(6) if and to the extent required by Section 2.05(a) of the Intercreditor Agreement; and, in each such case, upon request of the Issuer, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Issuer; provided, however, to the extent the Issuer requests the Collateral Trustee to deliver evidence of the release of Collateral in accordance with this Section 4.1(a), the Issuer will deliver to the Collateral Trustee an Officers’ Certificate to the effect that such release of Collateral pursuant to this Section 4.1(a) did not violate the terms of any applicable Secured Debt Document or the ABL Debt Documents. Notwithstanding the foregoing, subject to the Intercreditor Agreement, all Liens will remain attached to and enforceable against all proceeds of any sale or disposition.
(b) The Collateral Trustee agrees for the benefit of the Issuer and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officers have read Article 4 of this Agreement and understand the provisions and the definitions relating hereto, (B) such officers have made such examination or investigation as is otherwise authorized necessary to enable such Persons to express an informed opinion as to whether or not the conditions precedent in this Agreement and permitted all other Secured Debt Documents and the ABL Debt Documents, if any, relating to the release of such Collateral have been complied with and (C) to the best knowledge of such officers, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then the Collateral Trustee will promptly execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Issuer or applicable Guarantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Note DocumentsCollateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Issuer or applicable Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Subordinated Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(4), the Collateral Trustee will deliver a copy of such Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Debt or Series of Subordinated Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens on the Collateral will be released (automatically and without the requirement of any further action by the Collateral Trustee or any other Person):
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding (other than any indemnification or other contingent liabilities in respect of which no claim or demand for payment has been made at such time), due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 101% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of by the Issuer or any Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Issuer or a Restricted Subsidiary (as defined under the Indenture) of the Issuer in a transaction or other circumstance that complies with Section 4.10 of the Indenture and such Priority Lien Collateral Agent releases its Lien on is permitted by all of the property or assets other Secured Debt Documents, at the time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or disposition is subject to Section 5.01 of the lien subordination Indenture;
(3) as to any Collateral of a Restricted Subsidiary (as defined under the Indenture) that is designated as an Unrestricted Subsidiary (as defined under the Indenture) in compliance with the provisions of the Intercreditor AgreementIndenture and any other relevant provisions of any other Secured Debt Documents, and at the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted time such Restricted Subsidiary is designated as an additional guaranty, Unrestricted Subsidiary; and
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note Documents applicable Secured Debt Documents, and (B) ION the Issuer has delivered an officersopinion of counsel and Officers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained.
(b) The Collateral Trustee agrees for the benefit of the Issuer and the Grantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release is otherwise authorized to the Issuer or the applicable Grantor on or before the later of (x) the date specified in such request for such release and permitted (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Note DocumentsCollateral Trustee.
(c) The Collateral Trustee hereby agrees that in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Issuer or the applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release.
(d) Any amendment or supplement to the provisions of the Security Documents that releases Collateral will be effective only in accordance with the requirements set forth in this Article 4.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(i) in whole, upon (A) payment in full in cash and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash and discharged, (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount of outstanding letters of credit and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(ii) as to any Collateral of a Grantor or Guarantor that is (A) released as a Grantor or Guarantor, if in connection as applicable, under each Parity Lien Document and (B) is not obligated (as primary obligor or guarantor) with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or respect to any other exercise of any Priority Parity Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of Obligations and so long as the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to respective release does not violate the terms of any Parity Lien Document which then remains in effect;
(iii) as to any Collateral of the Intercreditor AgreementCompany, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative Grantor or any Priority Lien Collateral AgentGuarantor that is sold, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company, any Grantor or any Guarantor to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on sale, transfer or disposition) the property Company or assets of such Person then the Liens a Restricted Subsidiary of the Collateral Agent Company in a transaction or other circumstance that complies with respect Section 6.04 of the Second Lien Credit Agreement (other than any sale, disposition or other transaction solely between or among any Grantors or any Guarantors and other than the obligation to the property or assets (but excluding, for the avoidance of doubt, any Liens on the apply proceeds of such property or assetsAsset Sale as provided in such Section) and is permitted by all of the other Parity Lien Documents, at the time of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementinterest sold, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, transferred or otherwise disposed of;
(iv) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(v) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(vi) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Collateral Trustee certifying that all such necessary consents have been obtained;
(vii) as to a release of Collateral effected in connection with the enforcement or exercise of rights or remedies by the Collateral Trustee with respect to its Liens in such Collateral, if direction of such enforcement or exercise has been given by an Act of Parity Lien Debtholders; or
(viii) if and to the extent, and in the manner, required by Section 4.01(a)(ii) or (iii) of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if the Collateral Trustee at any time receives:
(i) an Officers’ Certificate and an Opinion of Counsel each stating that (A) the signing Officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Officer, such conditions precedent, if any, have been complied with; and
(ii) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of the items required by this Section 4.1(b), upon written request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(vii), the Collateral Trustee shall execute and deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Priority Lien Collateral AgentAgent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(i) in the case of any release pursuant to Section 4.1(a)(iii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(ii) at any time when a Parity Lien Debt Default has occurred and is continuing, within three Business Days of the receipt by it of any Act of Parity Lien Debtholders, the Collateral Agent certifying that all Trustee, pursuant to Section 4.1(a)(iv), will deliver a copy of such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsAct of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject The Collateral Trustee’s Liens upon the Collateral will be released and terminate:
(a) in whole, upon the Secured Debt Termination Date;
(b) upon the written request of the Company and the respective Grantor to the Collateral Trustee, as to any Collateral of a Grantor (other than the Company) that (x) is released as a Guarantor under each First Lien Debt Document and (y) is not obligated (as primary obligor or guarantor) with respect to any other First Lien Obligations at such time and so long as the respective release does not violate the terms of any First Lien Debt Document which then remains in effect;
(c) as to any Collateral that is released, sold, transferred or otherwise disposed of by the Company or any other Grantor to a Person that is not (either before or after such release, sale, transfer or disposition) the Company or a Subsidiary thereof in a transaction or other circumstance that complies with the terms of the Intercreditor Agreement, if Credit Agreement (for so long as the Credit Agreement is in connection with any Enforcement Action effect) and the Existing Indenture (for so long as the Existing Indenture is in effect) and is not prohibited by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority other First Lien Secured PartiesDebt Documents, releases any of its Liens on any part of at the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notesrelease, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementinterest released, and the Trusteesold, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, transferred or otherwise disposed of;
(d) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect pursuant to such Collateralclause (a), no (b) or (c) above) at any time prior to the Discharge of First Lien Obligations if written consent to the release of the all First Liens on such Collateral securing has been given by an Act of Required First Lien Debtholders; and
(e) as to a release of all or substantially all of the New Second Lien Convertible Notes shall be made unless Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of First Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable First Lien Debt Documents and (B) ION the Company has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained obtained.
(f) At any time that any Grantor desires that the Collateral Trustee take any action to acknowledge or give effect to any release of Collateral pursuant to the foregoing provisions of this Section 4.1, the Company and the respective Grantor shall deliver to the Collateral Trustee a certificate signed by an officer of the Company and such Grantor stating that the release of the respective Collateral is otherwise authorized permitted pursuant to Section 4.1(a), (b), (c), (d) or (e), as the case may be. In determining whether any release of Collateral is permitted, the Collateral Trustee shall be entitled to conclusively rely on any officer’s certificate furnished by it pursuant to the immediately preceding sentence. All actions taken pursuant to this Section 4.1 shall be at the sole cost and permitted by expense of the Note DocumentsCompany and the respective Grantor.
Appears in 1 contract
Samples: Collateral Trust and Intercreditor Agreement (CVR Energy Inc)
Release of Liens on Collateral. Subject (a) The Collateral securing the Obligations will automatically and without the need for any further action by any Person be released in any of the following circumstances:
(1) in whole or in part, as applicable, as to all or any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances or that is or becomes an Excluded Asset;
(2) in whole upon:
(1) satisfaction and discharge of this Indenture pursuant to Article 11; or
(2) a legal defeasance or covenant defeasance of this Indenture pursuant to Article 8;
(3) in part, as to any property that (a) is sold, transferred or otherwise disposed of by the Issuer or any Guarantor (other than to the terms Issuer or another Guarantor) in a transaction not prohibited by this Indenture at the time of the Intercreditor Agreementsuch sale, if transfer or disposition or in connection with any Enforcement Action exercise of remedies pursuant to this Indenture or the Collateral Trust Agreement, (b) is owned or at any time acquired by any Priority Lien Representative a Guarantor that has been released from its Guarantee in accordance with this Indenture, concurrently with the release of such Guarantee (including in connection with the designation of a Guarantor as an Unrestricted Subsidiary) or (c) is a Permitted Receivables Facility Asset that is sold, transferred or otherwise disposed by the Issuer or any Priority Lien Collateral Agent Guarantor to a Receivables Entity in connection with a Permitted Receivables Facility or any other exercise of any Priority Lien Representative’s (d) becomes an Excluded Asset;
(4) in whole or any Priority Lien Collateral Agent’s remedies in respect of part, with the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit consent of the holders of the New Second Lien Convertible Notes, on such Collateral, requisite percentage of Notes in accordance with Article 9 and the obligations upon delivery of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally instructions and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agentdocumentation, in each case prior to the Discharge of Priority Lien Obligationsas required by this Indenture, the equity interests of any Person are foreclosed upon or otherwise disposed of Security Documents and such Priority Lien the Collateral Agent releases its Lien on Trust Agreement;
(5) in part, in accordance with the property or assets of such Person then the Liens applicable provisions of the Security Documents and the Collateral Agent with respect to Trust Agreement; and
(6) in whole, upon the property occurrence of the Fall Away Date as set forth in Section 4.20.
(b) The Issuer or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will a Guarantor shall be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty the Collateral Trust Agreement and the other Security Documents and the Collateral Trustee’s Liens upon the Collateral of the Priority Issuer or such Guarantor and the capital stock or other equity interests of the Issuer or such Guarantor shall be automatically released if the Issuer or such Guarantor (x) ceases to be a Restricted Subsidiary or (y) becomes an Excluded Subsidiary; provided that the Parent has elected for such Excluded Subsidiary to be released in accordance with the 2017 Credit Agreement. Notwithstanding anything to the contrary herein, the Collateral Trustee is irrevocably authorized by the Trustee and each Holder, by its acceptance of the Notes, to:
(a) subordinate or release its Lien Obligations, on any property in connection with any sale, lease, exchange, transfer or other disposition the incurrence of any Collateral by Indebtedness pursuant to clause (11) or (13) of Section 4.09(b); and
(b) subordinate its Lien on any Guarantor permitted under property to the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise holder of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed on such property that is permitted by the previous paragraphclause (4), in each case other than in connection with(5), or following(7), the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any 10) (excluding Liens on the proceeds of such CollateralCollateral securing obligations under the 2017 Credit Agreement and the 2024 Secured Notes Indenture), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes(12), shall be automatically(16), unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs(17), (20), (23), (25), (26), (33), (34), (35), (39), (40) (to the extent that the relevant Lien is of the type to which the Lien of the Collateral Trustee may otherwise be required to be subordinated under this clause (b) pursuant to any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties of the other Permitted Liens that are expressly included in this clause (ib)) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii41) obtain any new liens of the definition of “Permitted Liens” or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateralwith respect to which, subject to the lien subordination provisions Collateral Trust Agreement, the consent of the Intercreditor Agreement, and the Trustee, for itself and for the holders Holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of Notes in accordance with the holders of New Second Lien Convertible Notes at the time outstanding as provided for provisions described in the Note Documents and (B) ION Article 9 has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsobtained.
Appears in 1 contract
Samples: Indenture (Endo International PLC)
Release of Liens on Collateral. Subject (a) The Collateral securing the Obligations of the Company and the Guarantors in respect of the Notes will automatically and without the need for any further action by any Person be released in any of the following circumstances:
(i) in part as to any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances or that is or becomes Excluded Property;
(ii) in whole upon:
(A) satisfaction and discharge of this Indenture pursuant to Article Eleven hereof; or
(B) a legal defeasance or covenant defeasance of this Indenture pursuant to Article Eight hereof;
(iii) in part, as to any property that (a) is sold, transferred or otherwise disposed of by the Company or any Guarantor (other than to the terms Company or another Guarantor) in a transaction not prohibited by this Indenture and the Security Documents at the time of the Intercreditor Agreementsuch sale, if transfer or disposition or in connection with any Enforcement Action exercise of remedies pursuant to this Indenture, the Security Documents or the First Lien Intercreditor Agreement or (b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee in accordance with this Indenture, concurrently with the release of such Guarantee (including in connection with the designation of a Guarantor as an Unrestricted Subsidiary);
(iv) as provided under Article Nine hereunder;
(v) as to any Priority asset constituting Collateral if all other Liens on that asset securing the First Lien Representative Secured Obligations then secured by that asset (including commitments thereunder) are released or will be released simultaneously therewith, other than by reason of the discharge in full of any Priority such First Lien Collateral Agent Secured Obligations, which discharge is not in connection with a foreclosure of, or any other exercise of any Priority Lien Representative’s or any Priority Lien remedies with respect to, Collateral Agent’s remedies in respect of by the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Applicable Collateral Agent, for itself to the extent set forth in the Security Documents and the First Lien Intercreditor Agreement; and
(vi) in whole or on behalf of any in part, in accordance with the applicable provisions of the Priority Security Documents and the First Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Intercreditor Agreement.
(b) A Guarantor shall be automatically released from its obligations under its guaranty of the Priority First Lien Obligations, then Intercreditor Agreement and the Liens, if any, of Security Documents and the Collateral Agent, for itself, ’s Liens upon the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations Collateral of such Guarantor under its guaranty of and the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action Capital Stock or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets Equity Interests of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will Guarantor shall be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall ceases to be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsRestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Geo Group Inc)
Release of Liens on Collateral. Subject (a) The Liens securing the Notes and Guarantees will be automatically released, all without delivery of any instrument or performance of any act by any party, at any time and from time to time as provided by this Section 11.04. The Collateral shall be released from the Lien and security interest securing the Notes created by the Collateral Documents under one or more of the following circumstances:
(i) upon satisfaction and discharge of this Indenture as set forth under Article Eight hereof;
(ii) upon a Legal Defeasance or Covenant Defeasance of the Notes as set forth under Article Eight hereof;
(iii) upon payment in full and discharge of all Notes outstanding under this Indenture and of all Obligations that are outstanding, due and payable under this Indenture and the Collateral Documents at the time the Notes are paid in full and discharged;
(iv) with respect to any property or assets, to enable the disposition of such property or assets to any Person (other than the Issuer or a Restricted Subsidiary) to the terms extent not prohibited under Section 4.09;
(v) with respect to any Capital Stock, upon the dissolution or liquidation of the Intercreditor Agreementissuer of that Capital Stock that is not prohibited by this Indenture; or
(vi) in whole or in part, with the consent of the Holders of the requisite percentage of Notes in accordance with Section 9.02 hereof.
(b) The Collateral Agent and, if in connection with necessary, the Trustee shall, at the Issuer’s expense (and subject to their receipt of an Officer's Certificate and Opinion of Counsel as provided below), execute, deliver or acknowledge any Enforcement Action by any Priority Lien Representative necessary or any Priority Lien Collateral Agent proper instruments of termination, satisfaction or any release to evidence and shall do or cause to be done all other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateralacts reasonably necessary to effect, in each case prior to as soon as is reasonably practicable, the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf release of any of the Priority Lien Secured Parties, releases any of its Liens on any part of Collateral permitted to be released pursuant to this Indenture and the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, Documents. Neither the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of nor the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, liable for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain release undertaken in reliance upon any new liens or additional guarantees from any GuarantorOfficer’s Certificate. Without limiting the foregoing, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent prior to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien any Collateral Agent, the Trustee and the Collateral Agent certifying shall be entitled to receive an Officer’s Certificate and Opinion of Counsel stating that all conditions precedent under this Indenture and the Collateral Documents to such consents release have been obtained met and such release is otherwise authorized permitted under this Indenture and permitted the Collateral Documents.
(c) The release of any Collateral from the terms of this Indenture and any of the Collateral Documents will not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent the Collateral is released pursuant to the terms hereof or of any of the Collateral Documents. To the extent applicable, the Issuer shall cause Trust Indenture Act Section 313(b), relating to reports, and Trust Indenture Act Section 314(d), relating to the release of property or securities from the Lien and security interest of the Collateral Documents and relating to the substitution therefor of any property or securities to be subjected to the Lien and security interest of the Collateral Documents, to be complied with. Any certificate or opinion required by Trust Indenture Act Section 314(d) may be made by an officer of the Issuer except in cases where Trust Indenture Act Section 314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert selected by the Note DocumentsIssuer in a manner consistent with the requirements of the Trust Indenture Act. Notwithstanding anything to the contrary in this Section 11.04(c), the Issuer will not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if it determines, in good faith based on advice of counsel, that under the terms of Section 314(d) of the Trust Indenture Act and/or any interpretation or guidance as to the meaning thereof of the Commission 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 released Collateral.
Appears in 1 contract
Samples: Indenture (Digicel Pacific LTD)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released and terminated:
(1) in whole, automatically, upon the Discharge of Junior Lien Obligations, with notice to the Collateral Trustee, however failure to deliver such notice shall not affect such release;
(2) upon the written request of the Issuers and the applicable Grantor to the Collateral Trustee, as to any Capital Stock and Collateral of a Grantor (other than the Issuers) that (x) is released as a Grantor under each Junior Lien Document and (y) is not obligated (as primary obligor, guarantor or pledgor) with respect to any other Junior Lien Obligations at such time and so long as the respective release does not violate the terms of any Notes Document which then remains in effect;
(3) as to any Collateral that is released, sold, transferred or otherwise disposed of by the Issuers or any other Grantor to a Person that is not (either before or after such release, sale, transfer or disposition) the Company or a Restricted Subsidiary (as defined in the Closing Date Indenture) thereof in a transaction or other circumstance that complies with the terms of the Intercreditor Agreement, if Closing Date Indenture (for so long as the Closing Date Indenture is in connection with any Enforcement Action effect) and is not prohibited by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority other Junior Lien Secured PartiesDocuments, releases any of its Liens on any part of at the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notesrelease, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementinterest released, and the Trusteesold, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, transferred or otherwise disposed of;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect pursuant to such Collateralclause (1), no release (2) or (3) above) at any time prior to the Discharge of the Liens on such Collateral securing the New Second Junior Lien Convertible Notes shall be made unless (A) Obligations if written consent to the release of all Liens on such Liens securing Collateral has been given by an Act of Required Junior Lien Debtholders; and
(5) as to a release of all or substantially all of the New Second Lien Convertible Notes Collateral, if consent to release of that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Junior Lien Convertible Notes Debt at the time outstanding as provided for in the Note Documents applicable Junior Lien Documents.
(b) Each of the subordinations and releases described in Section 4.1(a)(1) through (B3) ION has delivered an officers’ certificate shall be effected by the Collateral Trustee without the consent of the holders or any action on the part of the Indenture Trustee. To the extent required by the Closing Date Indenture for the release of properties that constitute Collateral pursuant to Section 4.1(a)(3) above, the Issuers will furnish to the Priority Lien Collateral Agent, the Indenture Trustee and the Collateral Agent certifying Trustee, prior to each such proposed release of such Collateral, an Officers’ Certificate to the effect that all such consents have been obtained transaction and the disposition of the proceeds thereof will comply with the terms of the Closing Date Indenture, the applicable security agreements and the other applicable Junior Lien Documents, as the case may be.
(c) Upon compliance by either of the Issuers or any other Grantor, as the case may be, with the conditions precedent set forth in this Section 4.1, the Indenture Trustee or the Collateral Trustee shall promptly cause to be released and reconveyed to the Issuers or such release is otherwise authorized and permitted by Grantor, as the Note Documentscase may be, the released Collateral.
Appears in 1 contract
Samples: Second Lien Collateral Trust Agreement (CSI Compressco LP)
Release of Liens on Collateral. Subject (a) The Collateral securing the Obligations will automatically and without the need for any further action by any Person be released in any of the following circumstances:
(1) in whole or in part, as applicable, as to all or any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances or that is or becomes an Excluded Asset;
(2) in whole upon:
(1) satisfaction and discharge of this Indenture pursuant to Article 11; or
(2) a legal defeasance or covenant defeasance of this Indenture pursuant to Article 8;
(3) in part, as to any property that (a) is sold, transferred or otherwise disposed of by the Issuers or any Guarantor (other than to the terms Issuers or another Guarantor) in a transaction not prohibited by this Indenture at the time of such sale, transfer or disposition or in connection with any exercise of remedies pursuant to this Indenture, the Second Lien Collateral Trust Agreement or the Intercreditor Agreement, if (b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee in accordance with this Indenture, concurrently with the release of such Guarantee (including in connection with any Enforcement Action the designation of a Guarantor as an Unrestricted Subsidiary), (c) is a Permitted Receivables Facility Asset that is sold, transferred or otherwise disposed by any Priority Lien Representative the Issuers or any Priority Guarantor to a Receivables Entity in connection with a Permitted Receivables Facility or (d) becomes an Excluded Asset;
(4) in whole or in part, pursuant to an Act of Required Secured Parties under the Second Lien Collateral Agent or Trust Agreement and upon delivery of instructions and any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateraldocumentation, in each case prior as required by this Indenture and the Security Documents;
(5) as to any asset constituting Collateral if all other Liens on that asset securing First Lien Secured Obligations and any other Second Lien Secured Obligations then secured by that asset (including commitments thereunder) are released or will be released simultaneously therewith, other than by reason of the payment under or termination of any such First Lien Secured Obligations and other Second Lien Secured Obligations to the Discharge extent set forth in the Security Documents and the Intercreditor Agreement;
(6) in part, in accordance with the applicable provisions of Priority Lien Obligationsthe Security Documents, such Priority the Second Lien Collateral AgentTrust Agreement and the Intercreditor Agreement; and
(7) in whole, for itself or on behalf of any upon the occurrence of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral Fall Away Date as set forth in Section 4.20.
(b) An Issuer or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any a Guarantor shall be automatically released from its obligations under its guaranty of the Priority Second Lien ObligationsCollateral Trust Agreement, then the Liens, if any, of Intercreditor Agreement and the other Security Documents and the Collateral AgentTrustee’s Liens upon the Collateral of such Issuer or Guarantor and the capital stock or other equity interests of such Issuers or Guarantor shall be automatically released if such Issuer or Guarantor (x) ceases to be a Restricted Subsidiary or (y) becomes an Excluded Subsidiary; provided that the Parent has elected for such Excluded Subsidiary to be released in accordance with the 2017 Credit Agreement. Notwithstanding anything to the contrary herein, for itself, the Collateral Trustee is irrevocably authorized by the Trustee and for the benefit each Holder, by its acceptance of the holders of the New Second Lien Convertible Notes, to:
(a) subordinate or release its Lien on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if any property in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests incurrence of any Person are foreclosed upon Indebtedness pursuant to clause (11) or otherwise disposed (13) of and such Priority Lien Collateral Agent releases Section 4.09(b); and
(b) subordinate its Lien on the any property or assets of such Person then the Liens of the Collateral Agent with respect to the holder of any Lien on such property or assets that is permitted by clause (but excluding4), for the avoidance of doubt(5), any (7), (10) (excluding Liens on the proceeds of such property or assets) of such Person will be automatically released to Collateral securing the same extent as obligations under the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor 2017 Credit Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien 2024 Secured Parties represented by it, releases any of its Liens on any part of Notes Indenture and the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien 2027 Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraphNotes Indenture), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral12), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes(16), shall be automatically(17), unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs(20), (23), (25), (26), (33), (34), (35), (39), (40) (to the extent that the relevant Lien is of the type to which the Lien of the Collateral Trustee may otherwise be required to be subordinated under this clause (b) pursuant to any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties of the other Permitted Liens that are expressly included in this clause (ib)) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii41) obtain any new liens of the definition of “Permitted Liens” or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateralwith respect to which, subject to the lien subordination provisions Second Lien Collateral Trust Agreement, the consent of the Intercreditor Agreement, and the Trustee, for itself and for the holders Holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of Notes in accordance with the holders of New Second Lien Convertible Notes at the time outstanding as provided for provisions described in the Note Documents and (B) ION Article 9 has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsobtained.
Appears in 1 contract
Samples: Indenture (Endo International PLC)
Release of Liens on Collateral. Subject to (a) The Collateral Trustee’s Liens upon the terms of the Intercreditor Agreement, if Collateral will be released in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Partiesfollowing circumstances:
(i) in whole, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of as to both the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of Liens and the Priority Lien Obligations, then the Parity Liens, if any, upon the later of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursand the Discharge of Parity Lien Obligations;
(ii) in whole, as to the Priority Lien only, upon the written request of the Borrower to the Collateral Trustee, at any time when there has been a Discharge of Priority Lien Obligations;
(iii) in whole, as to the Parity Lien only, upon the written request of the Borrower to the Collateral Trustee, at any time when there has been a Discharge of Parity Lien Obligations;
(iv) as to any Collateral that is sold, transferred or otherwise disposed of by the Borrower or any other Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or Guarantor (as defined under the Credit Agreement or any other Secured Debt Document) of the Borrower in a transaction or other circumstance that complies with Section 6.04 of the Credit Agreement, if any, and is permitted by all of the other Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or disposition is subject to the lien subordination “Merger, Consolidation or Sale of Assets” provisions of the Intercreditor Agreement, and Credit Agreement or the Trustee, for itself and for the holders equivalent provisions of the New Second Lien Convertible Notes, shall be granted an additional guaranty, any other Secured Debt Document;
(v) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such pursuant to clause (4) above), if directed by an Act of Required Secured Parties accompanied by an Officers’ Certificate to the effect that the release occurs was permitted by each applicable Secured Debt Document; provided, that this clause (5) shall not apply (i) in connection with the case of the Discharge of Priority Lien Secured Parties’ foreclosure upon Obligations or other exercise (ii) to sales or dispositions subject to the “Merger, Consolidation or Sale of rights and remedies with respect to such Collateral), no release Assets” provisions of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documents.Credit Agreement;
Appears in 1 contract
Samples: Collateral Trust Agreement
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash and discharged (other than contingent indemnity obligations for which no claim has been made), (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(2) as to any Collateral of a Mortgagor that is (A) released as a Guarantor under each Parity Lien Document and (B) not obligated (as primary obligor or guarantor) with respect to any other Parity Lien Obligations and so long as the respective release does not violate the terms of any Parity Lien Document which then remains in effect, and subject to the terms satisfaction of the requirements set forth in Section 4.01(a)(i) of the Intercreditor Agreement;
(3) as to any Collateral of a Mortgagor that is sold, transferred or otherwise disposed of by a Mortgagor to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Subsidiary in a transaction or other circumstance that does not violate Section 4.11 of the Indenture (other than the obligation to apply proceeds of such Collateral Sale (as defined in the Indenture) as provided in such Section 4.11 of the Indenture) and is permitted by all of the other Parity Lien Documents, and subject to the satisfaction of the requirements set forth in Section 4.01(a)(i) of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of at the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Section 5.01 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(A6) consent as to a release of all or substantially all of the Collateral, if (A)consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company, as applicable, has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained;
(7) as to any Collateral that becomes Excluded Property (other than under clause (g) of the definition of such term as set forth in the Indenture); or
(8) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Mortgagors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate (which the Collateral Trustee shall be entitled to rely upon) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and (D) such release is otherwise authorized and permitted of Collateral did not violate the terms of any applicable Parity Lien Document; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Note DocumentsCollateral Trustee of the items required by this Section 4.1(b), upon request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company or other applicable Mortgagor; provided that, in the case of a release of Liens under Section 4.1(a)(8), the Collateral Trustee shall execute and deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Priority Lien Agent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to Section 4.1(a)(3), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Mortgagor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(4), the Collateral Trustee will deliver a copy of such Act of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (Chesapeake Energy Corp)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash and discharged (other than contingent indemnity obligations for which no claim has been made), (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and (C) the cancellation or termination or cash collateralization (at the lesser of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(2) as to any Collateral of a Grantor that is (A) released as a Guarantor under each Parity Lien Document and (B) not obligated (as primary obligor or guarantor) with respect to any other Parity Lien Obligations and so long as the respective release does not violate the terms of any Parity Lien Document which then remains in effect, and subject to the terms satisfaction of the requirements set forth in Section 4.01(a)(i) of the Intercreditor Agreement;
(3) as to any Collateral of a Grantor that is sold, transferred or otherwise disposed of by a Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Subsidiary in a transaction or other circumstance that does not violate Section 4.07 of the Indenture (other than the obligation to apply proceeds therefrom as provided in such Section 4.07 of the Indenture) and is permitted by all of the other Parity Lien Documents, and subject to the satisfaction of the requirements set forth in Section 4.01(a)(i) of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of at the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Section 5.01 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company, as applicable, has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained; or
(7) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate (which the Collateral Trustee shall be entitled to rely upon) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and (D) such release is otherwise authorized and permitted of Collateral did not violate the terms of any applicable Parity Lien Document; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Note Collateral Trustee of the items required by this Section 4.1(b) and any items required to be delivered under the applicable Parity Lien Documents, upon request and at the sole expense of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(7), the Collateral Trustee shall, subject to the delivery of any items required to be delivered under the applicable Parity Lien Documents, execute and deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Priority Lien Agent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to Section 4.1(a)(3), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Parity Lien Debt Default has occurred and is continuing, the Collateral Trustee will use reasonable efforts to deliver within three Business Days of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(4), a copy of such Act of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash and discharged (other than contingent indemnity obligations for which no claim has been made), (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreement, if in connection applicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(2) as to any Collateral of a Guarantor that is (A) released as a Guarantor under each Parity Lien Document and (B) is not obligated (as primary obligor or guarantor) with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or respect to any other exercise of any Priority Parity Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of Obligations and so long as the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to respective release does not violate the terms of any Parity Lien Document which then remains in effect;
(3) as to any Collateral of the Intercreditor AgreementCompany or a Guarantor that is sold, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any Guarantor to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on sale, transfer or disposition) the property Company or assets of such Person then a Restricted Subsidiary (as defined in the Liens Indenture) of the Collateral Agent with respect Company in a transaction or other circumstance that does not violate Section 4.14 of the Indenture (other than the obligation to the property or assets (but excluding, for the avoidance of doubt, any Liens on the apply proceeds of such property or assetsAsset Sale (as defined in the Indenture) as provided in such Section 4.14 of the Indenture) and is permitted by all of the other Parity Lien Documents, at the time of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Article 5 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Collateral Trustee certifying that all such necessary consents have been obtained; or
(7) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate (which the Collateral Trustee shall be entitled to rely upon) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and (D) such release of Collateral did not violate the terms of any applicable Parity Lien Document; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of the items required by this Section 4.1(b), upon request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(7), the Collateral Trustee shall execute and deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Priority Lien Collateral AgentAgent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to Section 4.1(a)(3), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(4), the Collateral Agent certifying that all Trustee will deliver a copy of such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsAct of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Priority Liens and the Parity Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by Borrower or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) Borrower or a Restricted Subsidiary (as defined under the Indenture) of Borrower in a transaction or other circumstance that complies with Section 4.10 of the Indenture, if any, and is permitted by all of the other Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that Collateral Agent's Liens upon the Collateral will not be released if the sale or disposition is subject to the "Merger, Consolidation or Sale of Assets" provisions of the Indenture;
(3) as to a release of less than all or less than substantially all of the Collateral, if consent to the release of all Priority Liens on such Collateral has been given by an Act of Required Debtholders;
(4) as to a release of all or substantially all of the Collateral, if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for in connection with any Enforcement Action by any Priority Lien Representative or any the applicable Secured Debt Documents and (B) Borrower has delivered an Officers' Certificate to Priority Lien Collateral Agent or and Collateral Agent certifying that any other exercise such necessary consents have been obtained; and
(5) with respect to Collateral constituting assets of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies a Restricted Subsidiary, if the Company designates such Restricted Subsidiary to be an Unrestricted Subsidiary in respect accordance with the applicable provisions of the CollateralIndenture and, in each case prior to the Discharge of Priority Lien Obligations, such designation has been consented to by the requisite percentage of holders of Priority Lien Debt.
(b) Priority Lien Collateral Agent and Collateral Agent agree for the benefit of Borrower and the Guarantors that if Priority Lien Collateral Agent or Collateral Agent, for itself as applicable, at any time receives:
(1) an Officers' Certificate stating that (A) the signing officer has read Article 5 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or on behalf of any of investigation as is necessary to enable him or her to express an informed opinion as to whether or not the Priority Lien conditions precedent in this Agreement and all other Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensDebt Documents, if any, relating to the release of the Collateral Agent, for itself, have been complied with and (C) in the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations opinion of such Guarantor under its guaranty of the New Second Lien Convertible Notesofficer, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreementsuch conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agentrecordable form, in each case if applicable; and
(3) prior to the Discharge of Priority Lien Obligations, the equity interests written confirmation of any Person are foreclosed upon or otherwise disposed of and such each Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets Representative (but excludingor, for the avoidance of doubt, at any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, time after the Discharge of Priority Lien Obligations, Collateral Agent) (such confirmation to be given following receipt of, and based solely on, the Officers' Certificate described in clause (1) above) that, in its view, such release is permitted by Section 5.1(a) and the respective Secured Debt Documents governing the Secured Obligations the holders of which such Secured Debt Representative represents; then the Liens, if any, of the Priority Lien Collateral Agent or Collateral Agent, as applicable, will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to Borrower or other applicable Guarantor on or before the later of (x) the date specified in such request for itself or for such release and (y) the benefit fifth Business Day after the date of receipt of the holders items required by this Section 5.2(b) by Priority Lien Collateral Agent or Collateral Agent, as applicable.
(c) Priority Lien Collateral Agent and Collateral Agent hereby agree that:
(1) in the case of any release pursuant to clause (2) of Section 5.2(a), if the terms of any such sale, transfer or other disposition require the payment of the New Second purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of Borrower or other applicable Guarantor, Priority Lien Convertible NotesCollateral Agent and Collateral Agent, on such Collateral as requested, will either (but excluding, for A) be present at and deliver the avoidance of doubt, any Liens on release at the proceeds closing of such Collateraltransaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Parity Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Debtholders pursuant to Section 5.1(a)(3), and the obligations of such Guarantor under its guaranty of the New Second Priority Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until Collateral Agent prior to the Discharge of Priority Parity Lien Obligations occursand Collateral Agent thereafter will deliver a copy of such Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officers' Certificate from Borrower pursuant to Section 5.1(b)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 5.1(b)(3), (B) a written statement that such release is not permitted by Section 5.1(a) or (C) a request for further information from Borrower reasonably necessary to determine whether the proposed release is permitted by Section 5.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within one Business Day of the receipt by it of any notice from Priority Lien Collateral AgentAgent prior to the Discharge of Parity Lien Obligations and Collateral Agent thereafter pursuant to Section 5.1(c)(2), any such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Representative Debt or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Series of Parity Lien Debt for which it acts as Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsDebt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject to (a) The Collateral Trustee’s Liens upon the terms of the Intercreditor AgreementCollateral will be released and terminated:
(1) in whole, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateralautomatically, in each case prior to upon the Discharge of Priority Lien Obligations, with notice to the Collateral Trustee, however failure to deliver such notice shall not affect such release;
(2) upon the written request of the Issuers and the applicable Grantor to the Collateral Trustee, as to any Capital Stock and Collateral of a Grantor (other than the Issuers) that (x) is released as a Grantor under each Priority Lien Collateral AgentDocument and (y) is not obligated (as primary obligor, for itself guarantor or on behalf pledgor) with respect to any other Priority Lien Obligations at such time and so long as the respective release does not violate the terms of any Notes Document which then remains in effect;
(3) as to any Collateral that is released, sold, transferred or otherwise disposed of by the Priority Lien Secured PartiesIssuers or any other Grantor to a Person that is not (either before or after such release, releases any of its Liens on any part of sale, transfer or disposition) the Collateral Company or such Priority Lien Representative, for itself a Restricted Subsidiary (as defined in the Closing Date Indenture) thereof in a transaction or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to other circumstance that complies with the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets Closing Date Indenture (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent so long as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of Closing Date Indenture is in effect) and is not prohibited by any of the other Priority Lien Secured Parties represented by itDocuments, releases any at the time of its Liens on any part of the Collateralsuch release, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementinterest released, and the Trusteesold, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, transferred or otherwise disposed of;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with pursuant to clause (1), (2) or (3) above) at any time prior to the Discharge of Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) Obligations if written consent to the release of all Liens on such Liens securing Collateral has been given by an Act of Required Priority Lien Debtholders; and
(5) as to a release of all or substantially all of the New Second Lien Convertible Notes Collateral, if consent to release of that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Priority Lien Convertible Notes Debt at the time outstanding as provided for in the Note Documents applicable Priority Lien Documents.
(b) Each of the subordinations and releases described in Section 4.1(a)(1) through (B3) ION has delivered an officers’ certificate shall be effected by the Collateral Trustee without the consent of the holders or any action on the part of the Indenture Trustee. To the extent required by the Closing Date Indenture for the release of properties that constitute Collateral pursuant to Section 4.1(a)(3) above, the Issuers will furnish to the Priority Lien Collateral Agent, the Indenture Trustee and the Collateral Agent certifying Trustee, prior to each such proposed release of such Collateral, an Officers’ Certificate to the effect that all such consents have been obtained transaction and the disposition of the proceeds thereof will comply with the terms of the Closing Date Indenture, the applicable security agreements and the other applicable Priority Lien Documents, as the case may be.
(c) Upon compliance by either of the Issuers or any other Grantor, as the case may be, with the conditions precedent set forth in this Section 4.1, the Indenture Trustee or the Collateral Trustee shall promptly cause to be released and reconveyed to the Issuers or such release is otherwise authorized and permitted by Grantor, as the Note Documentscase may be, the released Collateral.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Agent’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full in cash and discharged (or, in the case of Hedging Obligations, the cash collateralization of all such Hedging Obligations (or other arrangements with respect to all such Hedging Obligations) on terms reasonably satisfactory to each applicable counterparty, and the expiration and termination of all outstanding transactions under Hedging Agreements (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time)) and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination, cash collateralization (at the lower of (1) 103% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents or the issuance of a back to back letter of credit in favor of the issuer of any such outstanding letter of credit in an amount equal to the amount described in the parenthetical clause above and issued by a financial institution reasonably acceptable to such issuer;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action transferred or otherwise disposed of by any Priority Lien Representative or any Priority Lien Collateral Agent the Borrower or any other exercise Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Subsidiary of any Priority Lien Representative’s the Borrower in a transaction or any Priority Lien other circumstance that complies with and is permitted by all of the Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Agent’s remedies in respect Liens upon the Collateral will not be released if the sale or disposition is subject to the [“Merger, Consolidation or Sale of Assets”] provisions of the CollateralIndenture unless the Borrower has complied with the procedures and requirements in connection therewith set forth in the Indenture;
(3) as to a release of less than all or substantially all of the Collateral (other than pursuant to clause (2) above), in each case if (A) consent to the release of all First Liens (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Priority Second Lien Obligations, the Second Liens, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Liens) on such Priority Collateral has been given by an Act of Required Secured Parties and consent to the release of all Second Liens on such Collateral has been given by the Required Second Lien Debtholders or (B) the First Liens (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Second Lien Obligations, the Second Liens, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Liens) on such Collateral Agenthave been automatically released pursuant to the First Lien Documents (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Second Lien Obligations, the Second Lien Documents, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Lien Documents) and the Second Liens on such Collateral have been automatically released pursuant to the Second Lien Documents; provided, that this clause (3) shall not apply to (i) Discharge of First Lien Obligations upon payment in full thereof or Discharge of Second Lien Obligations upon payment in full thereof or (ii) sales or dispositions subject to the [“Merger, Consolidation or Sale of Assets”] provisions of the Indenture unless the Borrower has complied with the procedures and requirements in connection therewith set forth in the Indenture;
(4) as to a release of all or substantially all of the Collateral (other than pursuant to clause (1) above), if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for itself or in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officers’ Certificate to the Collateral Agent certifying that any such necessary consents have been obtained;
(5) if any Guarantor is released from its obligations under each of the Second Lien Documents, then the Second Liens on behalf such Collateral and the obligations of such Guarantor under its Guarantee of the Second Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(6) if any Guarantor is released from its obligations under each of the Third Lien Documents, then the Third Liens on such Collateral and the obligations of such Guarantor under its Guarantee of the Third Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(7) notwithstanding any of the Priority foregoing, if the Collateral Agent is exercising its rights or remedies with respect to the Collateral under the First Lien Security Documents pursuant to an Act of Required Secured Parties, and the Collateral Agent releases any of its the First Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority First Lien ObligationsObligations in connection therewith, then the Liens, if any, of Second Liens and the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, Third Liens on such Collateral, Collateral and the obligations of such Guarantor under its guaranty Guarantee of the New Second Lien Convertible NotesObligations and the Third Lien Obligations, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any Priority the Collateral Agent under the First Lien Representative or any Priority Lien Collateral Agent, in each case prior Security Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien the Collateral Agent releases its Lien First Liens on the property or assets of such Person then the Second Liens of and the Collateral Agent Third Liens with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the First Liens on such property or assets are released; provided, however, that the release of such Priority Lien the Second Liens and the Third Liens on Collateral Agent. Subject pursuant to this paragraph (7) shall not occur with respect to any Collateral, the net cash proceeds of the disposition of which will not be applied to repay (and, to the terms extent applicable, to reduce permanently commitments with respect to) the First Lien Obligations without the consent of the Intercreditor AgreementSecond Lien Administrative Agent or the Trustee, if any Priority Lien Collateral Agent, for itself or on behalf of as the case may be; and
(8) notwithstanding any of the Priority foregoing, if the Collateral Agent is exercising its rights or remedies with respect to the Collateral under the Second Lien Security Documents pursuant to an Act of Required Secured Parties represented by itParties, and the Collateral Agent releases any of its the Second Liens on any part of the Collateral, Collateral or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority Second Lien Obligations, Obligations in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligationstherewith, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, Third Liens on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty Guarantee of the New Second Third Lien Convertible NotesObligations, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs If in connection with the Priority Lien Secured Parties’ foreclosure upon or other any exercise of rights and remedies by the Collateral Agent under the Second Lien Security Documents pursuant to an Act of Required Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and the Collateral Agent releases Second Liens on the property or assets of such Person then the Third Liens with respect to the property or assets of such Collateral)Person will be concurrently and automatically released to the same extent as the Second Liens on such property or assets are released; provided, no however, that the release of the Third Liens on such Collateral securing pursuant to this paragraph (8) shall not occur with respect to any Collateral, the New net cash proceeds of the disposition of which will not be applied to repay (and, to the extent applicable, to reduce permanently commitments with respect to) the Second Lien Convertible Notes shall be made unless Obligations without the consent of the Trustee.
(b) The Collateral Agent agrees for the benefit of the Borrower and the other Grantors that if the Collateral Agent at any time receives:
(1) an Officers’ Certificate stating that (A) consent the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Liens securing officer, such conditions precedent, if any, have been complied with;
(2) the New proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) prior to the Discharge of First Lien Obligations, the written confirmation of each First Lien Representative (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Second Lien Convertible Notes has been Obligations, the Second Lien Administrative Agent, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Trustee) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the requisite percentage or number of respective Secured Debt Documents governing the Secured Obligations the holders of New Second Lien Convertible Notes which such Secured Debt Representative represents; then the Collateral Agent will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or other applicable Grantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Agent.
(c) The Collateral Agent hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the time outstanding as provided for in written request of and at the Note Documents expense of the Borrower or other applicable Grantor, the Collateral Agent will either (A) be present at and deliver the release at the closing of such transaction or (B) ION deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Second Lien Debt or Third Lien Debt has delivered an officers’ certificate occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Secured Parties pursuant to the Priority Lien Collateral AgentSection 4.1(a)(3), the Trustee and the Collateral Agent certifying will deliver a copy of such Act of Required Secured Parties to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officers’ Certificate from the Borrower pursuant to Section 4.1(b)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 4.1(b)(3), (B) a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.1(a) or (C) a request for further information from the Note DocumentsBorrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within two Business Days of the receipt by it of any notice from the Collateral Agent pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Secured Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral securing the Obligations will automatically and without the need for any further action by any Person be released in any of the following circumstances:
(1) in whole or in part, as applicable, as to all or any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances or that is or becomes an Excluded Asset;
(2) in whole upon:
(A) satisfaction and discharge of this Indenture pursuant to Article 11; or
(B) a legal defeasance or covenant defeasance of this Indenture pursuant to Article 8;
(3) in part, as to any property that (a) is sold, transferred or otherwise disposed of by the Issuer or any Guarantor (other than to the terms Issuer or another Guarantor) in a transaction not prohibited by this Indenture at the time of such sale, transfer or disposition or in connection with any exercise of remedies pursuant to this Indenture, the Intercreditor Agreement or the other Security Documents, (b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee in accordance with this Indenture, concurrently with the release of such Guarantee (including in connection with the designation of a Guarantor as an Unrestricted Subsidiary), or (c) is a Permitted Receivables Facility Asset that is sold, transferred or otherwise disposed by the Issuer or any Guarantor to a Receivables Entity in connection with a Permitted Receivables Facility;
(4) in whole or in part, pursuant to the fifth paragraph of Section 9.02; and
(5) in part, in accordance with the applicable provisions of the Security Documents and the Intercreditor Agreement.
(b) The Issuer or a Guarantor shall be automatically released from its obligations under the Intercreditor Agreement, any other applicable Approved Intercreditor Agreement and the other Security Documents and the Notes Collateral Agent’s Liens upon the Collateral of the Issuer or such Guarantor and the capital stock or other equity interests of the Issuer or such Guarantor shall be automatically released if the Issuer or such Guarantor (x) ceases to be a Restricted Subsidiary or (y) becomes an Excluded Subsidiary; provided that the Parent has elected for such Excluded Subsidiary to be released in accordance with the 2024 Credit Agreement. Notwithstanding anything to the contrary herein, the Notes Collateral Agent is irrevocably authorized by the Trustee and each Holder, by its acceptance of the Notes, to:
(a) subordinate or release its Lien on any property in connection with the incurrence of any Enforcement Action Indebtedness pursuant to clause (11) or (13) of Section 4.09(b); and
(b) subordinate its Lien on any property to the holder of any Lien on such property that is permitted by any Priority clause (4), (5), (7), (10) (excluding Liens on the Collateral securing the obligations under the Credit Agreement), (12), (16), (17), (20), (23), (25), (26), (33), (34), (35), (39), (40) (to the extent that the relevant Lien Representative or any Priority is of the type to which the Lien of the Notes Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior may otherwise be required to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of be subordinated under this clause (b) pursuant to any of the Priority Lien Secured Parties, releases any of its other Permitted Liens on any part that are expressly included in this clause (b)) or (41) of the Collateral definition of “Permitted Liens” or such Priority Lien Representativewith respect to which, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens consent of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance Holders of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of Notes in accordance with the holders of New Second Lien Convertible Notes at the time outstanding as provided for provisions described in the Note Documents and (B) ION Article 9 has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsobtained.
Appears in 1 contract
Samples: Indenture (Endo, Inc.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination, cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents or, solely to the extent if any agreed to by the issuer of any outstanding letter of credit issued pursuant to any Secured Debt Document, the issuance of a back to back letter of credit in favor of the issuer of any such outstanding letter of credit in an amount at least equal to such outstanding letter of credit and issued by a financial institution acceptable to such issuer;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by the Borrower or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Restricted Subsidiary (as defined under the Indenture) of the Borrower in a transaction or other circumstance that complies with Section 4.10 of the Indenture, if in connection with any Enforcement Action any, and is permitted by any Priority Lien Representative all of the other Secured Debt Documents, at the time of such sale, transfer or any Priority Lien other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Agent Trustee’s Liens upon the Collateral will not be released if the sale or any other exercise disposition is subject to Section 5.01 of any Priority Lien Representative’s the Indenture;
(3) as to a release of less than all or any Priority Lien Collateral Agent’s remedies in respect substantially all of the Collateral, in each case prior if (A) consent to the release of all Priority Liens (or, at any time after the Discharge of Priority Lien Debt Obligations, the Parity Liens) on such Collateral has been given by an Act of Required Secured Parties or (B) the Priority Liens (or, at any time after the Discharge of Priority Lien Debt Obligations, the Parity Liens) on such collateral have been automatically released pursuant to the Priority Lien Debt Documents; provided, that this clause (3) shall not apply to (i) Discharge of Priority Lien Debt Obligations upon payment in full thereof or (ii) sales or dispositions subject to Section 5.01 of the Indenture;
(4) as to a release of all or substantially all of the Collateral, if (A) consent to release of that Collateral Agenthas been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officers’ Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained;
(5) if any Guarantor is released from its obligations under each of the Parity Lien Debt Documents, for itself then the Parity Liens on such Collateral and the obligations of such Guarantor under its Guarantee of the Parity Lien Debt Obligations, shall be automatically, unconditionally and simultaneously released;
(6) as to a release of any Collateral that is acquired by the Borrower or on behalf any Guarantor subject to, or is to be made subject to, a Lien in a transaction otherwise permitted by all of the Secured Debt Documents, and the terms of such Lien transaction required that such Collateral not be subject to any Priority Lien or Parity Lien; and
(7) notwithstanding any of the foregoing, if the Collateral Trustee is exercising its rights or remedies with respect to the Collateral under the Priority Lien Security Documents pursuant to an Act of Required Secured Parties, and the Collateral Trustee releases any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority Lien ObligationsDebt Obligations in connection therewith, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, Parity Liens on such Collateral, Collateral and the obligations of such Guarantor under its guaranty Guarantee of the New Second Parity Lien Convertible NotesDebt Obligations, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any the Collateral Trustee under the Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior Security Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and such the Collateral Trustee releases Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Parity Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the Priority Liens on such property or assets are released.
(b) The Collateral Trustee agrees for the benefit of the Borrower and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable;
(3) prior to the Discharge of Priority Lien Debt Obligations, the written confirmation of each Priority Lien Debt Representative (or, at any time after the Discharge of Priority Lien Debt Obligations, each Parity Lien Debt Representative) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the respective Secured Debt Documents governing the Secured Obligations the holders of which such Secured Debt Representative represents; and
(4) to the extent and in the form required by Section 10.03 of the Indenture, an Opinion of Counsel; then the Collateral Agent. Subject Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or the applicable Guarantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any such sale, lease, exchange, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Borrower or the applicable Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Parity Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Collateral by any Guarantor permitted under the terms Act of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraphRequired Secured Parties pursuant to Section 4.1(a)(3), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds Trustee will deliver a copy of such Collateral), and the obligations Act of such Guarantor under its guaranty Required Secured Parties to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursan Officers’ Certificate and, to the extent that any Priority Lien Collateral Agentrequired, any Priority Lien Representative or Priority Lien Secured Parties an Opinion of Counsel from the Borrower pursuant to Section 4.1(b)(1) and (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor4), then the Collateral Agentit will, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementextent required by such Section, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless either provide (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given written confirmation required by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and Section 4.1(b)(3), (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.1(a) or (C) a request for further information from the Note DocumentsBorrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Debt or Series of Parity Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash and discharged, (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreement, if in connection applicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(2) as to any Collateral of a Guarantor that is (A) released as a Guarantor under each Parity Lien Document and (B) is not obligated (as primary obligor or guarantor) with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or respect to any other exercise of any Priority Parity Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of Obligations and so long as the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to respective release does not violate the terms of any Parity Lien Document which then remains in effect;
(3) as to any Collateral of the Intercreditor AgreementCompany or a Subsidiary Guarantor that is sold, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any Guarantor to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on sale, transfer or disposition) the property Company or assets of such Person then a Restricted Subsidiary (as defined in the Liens Indenture) of the Collateral Agent Company in a transaction or other circumstance that complies with respect Section 4.10 of the Indenture (other than the obligation to the property or assets (but excluding, for the avoidance of doubt, any Liens on the apply proceeds of such property or assetsAsset Sale (as defined in the Indenture) as provided in such Section) and is permitted by all of the other Parity Lien Documents, at the time of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Section 5.01 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Collateral Trustee certifying that all such necessary consents have been obtained;
(7) as to any Collateral that becomes an Excluded Asset; or
(8) if and to the extent, and in the manner, required by Section 4.01 of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of the items required by this Section 4.1(b), upon request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(7), the Collateral Trustee shall execute and deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Priority Lien Collateral AgentAgent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to Section 4.1(a)(3), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(4), the Collateral Agent certifying that all Trustee will deliver a copy of such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsAct of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject to (a) The Liens on the terms Collateral securing each series of New Second Lien Secured Notes will be released automatically and without the need for any further action by any Person under any one or more of the Intercreditor Agreementfollowing circumstances:
(i) in whole, if upon:
(1) payment in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect full of the Collateralprincipal of, in each case together with accrued and unpaid interest on, the applicable New Second Lien Secured Notes and all other Second Lien Obligations hereunder, under the applicable New Second Lien Secured Notes, under the Guarantees and under the Second Lien Security Documents that are due and payable at or prior to the Discharge of Priority Lien Obligationstime such principal, such Priority Lien Collateral Agenttogether with accrued and unpaid interest are paid, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of or
(2) with respect to the New Second Lien Non-Convertible Notes, on such Collateral, and the obligations of such Guarantor a legal defeasance or covenant defeasance under its guaranty Article VIII;
(ii) any of the New Second Lien Convertible Notes, Collateral shall be automaticallysold, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, Company or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any a Subsidiary Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of , in a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations transaction permitted by the Priority Second Lien Indenture, the applicable New Second Lien Secured Parties Notes and the First Lien/Second Lien/Third Lien Intercreditor Agreements (except to the Company or another Subsidiary Guarantor), with respect to only such Collateral sold but not on any Proceeds thereof;
(iii) all or substantially all of the Equity Interests of any Subsidiary Guarantor shall be sold, transferred or otherwise disposed of by the Company or any Subsidiary Guarantor in a transaction permitted by the Amended Credit Agreement (except to the Company or a Subsidiary Guarantor), with respect only to the Collateral of the Company or such Subsidiary Guarantor, as the case may be;
(other than when such release occurs in connection with iv) if a Subsidiary Guarantor otherwise ceases to be a Grantor pursuant to the Priority Lien Secured Parties’ foreclosure upon terms of the U.S. Security Agreement or other exercise of rights and remedies Canadian Security Agreement, with respect to only the Collateral of such CollateralSubsidiary Guarantor but not on any Proceeds thereof;
(v) if a Subsidiary Guarantor otherwise ceases to be a Subsidiary Guarantor in accordance with the terms of this Second Lien Indenture, with respect to only the Collateral of such Subsidiary Guarantor but not on any Proceeds thereof;
(vi) upon such property or other asset being released from the Liens securing the Senior Lien Obligations (excluding in the case of the payment thereof);
(vii) as required by the terms of any applicable intercreditor agreement, no including a full release of the Liens on Collateral upon the Discharge of Senior Lien Obligations; or
(viii) upon such Collateral securing the New Second Lien Convertible Notes shall be made unless property or asset becoming an Excluded Asset.
(Ab) consent Upon delivery of an Officer’s Certificate and Opinion of Counsel to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent and the Second Lien Trustees certifying that all such consents have been obtained and such release is otherwise authorized and permitted by this Second Lien Indenture, the Note DocumentsCollateral Agent and the Second Lien Trustees, as applicable, shall execute and deliver such evidence of release as may be reasonably requested by the Company, at the Company’s sole cost and expense.
Appears in 1 contract
Samples: Second Lien Indenture (Bed Bath & Beyond Canada L.P.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens on the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by the Borrower or any Subsidiary Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Restricted Subsidiary (as defined under the Indenture or any other Secured Debt Document) of the Borrower in a transaction or other circumstance that complies with Section 4.10 of the Indenture and is permitted by all of the other Secured Debt Documents, at the time of such sale, transfer or other disposition or to the terms extent of the Intercreditor Agreementinterest sold, transferred or otherwise disposed of; provided that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is subject to Section 5.01 of the Indenture or any similar covenant in any other Secured Debt Document prohibiting the release of such Liens in connection with such sale or disposition;
(3) as to any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent of a Restricted Subsidiary (as defined under the Indenture or any other exercise Secured Debt Document) that is designated as an Unrestricted Subsidiary (as defined under the Indenture or any other Secured Debt Document) in compliance with the provisions of the Indenture and any other relevant provisions of any Priority Lien Representative’s other Secured Debt Documents, at the time such Restricted Subsidiary is designated as an Unrestricted Subsidiary;
(4) as to a release of less than all or any Priority Lien Collateral Agent’s remedies in respect substantially all of the CollateralCollateral (other than pursuant to clause (2) above), in each case prior if (A) consent to the release of all Priority Liens (or, at any time after the Discharge of Priority Lien Obligations, the Parity Liens) on such Collateral has been given by an Act of Required Debtholders or (B) the Priority Liens (or, at any time after the Discharge of Priority Lien Obligations, the Parity Liens) on such collateral have been automatically released pursuant to the Priority Lien Documents; provided, that this clause (4) shall not apply to (i) Discharge of Priority Lien Obligations upon payment in full thereof or (ii) sales or dispositions subject to Section 5.01 of the Indenture or any similar covenant in any other Secured Debt Document prohibiting the release of such Liens in connection with such sale or disposition;
(5) as to a release of all or substantially all of the Collateral Agent(other than pursuant to clause (1) above), if (A) consent to the release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for itself in the applicable Secured Debt Documents, and (B) the Borrower has delivered an Officers’ Certificate to the Collateral Trustee certifying that all such necessary consents have been obtained.
(6) if any Guarantor is released from its obligations under each of the Parity Lien Documents, then the Parity Liens on such Collateral and the obligations of such Guarantor under its Guarantee of the Parity Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(7) notwithstanding any of the foregoing, if the Collateral Trustee is exercising its rights or on behalf remedies with respect to the Collateral under the Priority Lien Security Documents pursuant to an Act of Required Debtholders, and the Collateral Trustee releases any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority Lien ObligationsObligations in connection therewith, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, Parity Liens on such Collateral, Collateral and the obligations of such Guarantor under its guaranty Guarantee of the New Second Parity Lien Convertible NotesObligations, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any the Collateral Trustee under the Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior Security Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Debtholders, the equity interests of any Person are foreclosed upon or otherwise disposed of and such the Collateral Trustee releases Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Parity Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the Priority Liens of on such Priority Lien Collateral Agent. Subject property or assets are released; and
(8) if and to the terms extent required by Section 5.1 of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Borrower and the other Guarantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any Priority Lien Collateral Agentany, for itself or on behalf of any and all other provisions of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part Debt Documents relating to the release of the CollateralCollateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with;
(2) the proposed instrument or any Priority instruments releasing such Lien Representativeas to such property in recordable form, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents if applicable; and
(other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, 3) prior to the Discharge of Priority Lien Obligations, then the Lienswritten confirmation of each Priority Lien Representative (or, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, at any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until time after the Discharge of Priority Lien Obligations, each Parity Lien Representative) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the respective Secured Debt Documents governing the Secured Obligations occursthe holders of which such Secured Debt Representative represents; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or other applicable Guarantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Borrower or other applicable Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release.
(d) Each Secured Debt Representative hereby agrees that as soon as reasonably practicable after receipt of an Officers’ Certificate from the Borrower pursuant to Section 4.1(b)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 4.1(b)(3), (B) a written statement that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (isuch release is not permitted by Section 4.1(a) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (iiC) obtain any new liens a request for further information from the Borrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or additional guarantees from any Guarantorstatement required pursuant to clause (A) or (B), then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject as applicable.
(e) Any amendment or supplement to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall Security Documents that releases Collateral will be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs effective only in connection accordance with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for requirements set forth in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsthis Section 4.1.
Appears in 1 contract
Samples: Collateral Trust Agreement
Release of Liens on Collateral. (a) Subject to satisfaction of clause (b) below, the Collateral Trustee's Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation, termination, cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) or collateralization with a letter of credit in form and substance, if in connection with and from a financial institution, satisfactory to the applicable Secured Debt Representatives (such letter of credit to have a face amount equal to the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Enforcement Action Secured Debt Documents;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by any Priority Lien Representative or any Priority Lien Collateral Agent the Borrower or any other exercise Pledgor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Guarantor of any Priority Lien Representative’s the Borrower in a transaction or any Priority Lien other circumstance that complies with Section 4.10 (the "Asset Sale" provision) of the Indenture, if any, and is permitted by all of the other Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Agent’s remedies in respect Trustee's Liens upon the Collateral will not be released if the sale or disposition is subject to the "Merger, Consolidation or Sale of Assets" provisions of the Indenture;
(3) as to a release of less than all or substantially all of the Collateral, in each case prior if consent to the Discharge release of all Priority Lien Obligations, Liens on such Priority Lien Collateral Agent, for itself has been given by an Act of Required Debtholders; and
(4) as to a release of all or on behalf of any substantially all of the Priority Lien Collateral, if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Parties, releases any of its Liens on any part of Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officers' Certificate to the Collateral or Trustee certifying that any such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the necessary consents have been obtained.
(b) The Collateral Agent, for itself, the Trustee and agrees for the benefit of the holders Borrower and the other Pledgors that if the Collateral Trustee at any time receives:
(1) an Officers' Certificate stating that (A) the signing officer has read Section 4.1 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the New Second Lien Convertible Notes, on such Collateral, Collateral have been complied with and (C) in the obligations opinion of such Guarantor under its guaranty of the New Second Lien Convertible Notesofficer, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreementsuch conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agentrecordable form, in each case if applicable; and
(3) prior to the Discharge of Priority Lien Obligations, the equity interests written confirmation of any Person are foreclosed upon or otherwise disposed of and such each Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets Representative (but excludingor, for the avoidance of doubt, at any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, time after the Discharge of Priority Lien Obligations, then the Liens, if any, each Parity Lien Representative) (such confirmation to be given following receipt of the Collateral AgentOfficers' Certificate described in clause (1) above) that, for itself or for in its view, such release is permitted by Section 4.1(a) and the benefit of respective Secured Debt Documents governing the Secured Obligations the holders of which such Secured Debt Representative represents; then the New Second Lien Convertible NotesCollateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or other applicable Pledgor on or before the later of (x) the date specified in such request for such release and (y) the second Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), on if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Borrower or other applicable Pledgor, the Collateral Trustee will either (but excluding, for A) be present at and deliver the avoidance of doubt, any Liens on release at the proceeds closing of such Collateraltransaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Parity Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(3), and the obligations Collateral Trustee will deliver a copy of such Guarantor under its guaranty Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officers' Certificate from the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursBorrower pursuant to Section 4.1(b)(1) it will, to the extent that any Priority Lien Collateral Agentrequired by such Section, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless either provide (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given written confirmation required by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and Section 4.1(b)(3), (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.1(a) or (C) a request for further information from the Note DocumentsBorrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Debt or Series of Parity Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (Builders FirstSource, Inc.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination, cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents or, solely to the extent if any agreed to by the issuer of any outstanding letter of credit issued pursuant to any Secured Debt Document, the issuance of a back to back letter of credit in favor of the issuer of any such outstanding letter of credit in an amount at least equal to such outstanding letter of credit and issued by a financial institution acceptable to such issuer;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by the Borrower or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Restricted Subsidiary (as defined under the Indenture) of the Borrower in a transaction or other circumstance that complies with Section 4.10 of the Indenture, if in connection with any Enforcement Action any, and is permitted by any Priority Lien Representative all of the other Secured Debt Documents, at the time of such sale, transfer or any Priority Lien other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Agent Trustee’s Liens upon the Collateral will not be released if the sale or any other exercise disposition is subject to Section 5.01 of any Priority Lien Representative’s the Indenture;
(3) as to a release of less than all or any Priority Lien Collateral Agent’s remedies in respect substantially all of the Collateral, in each case prior if (A) consent to the release of all Priority Liens (or, at any time after the Discharge of Priority Lien Debt Obligations, the Parity Liens) on such Collateral has been given by an Act of Required Secured Parties or (B) the Priority Liens (or, at any time after the Discharge of Priority Lien Debt Obligations, the Parity Liens) on such collateral have been automatically released pursuant to the Priority Lien Debt Documents; provided, that this clause (3) shall not apply to (i) Discharge of Priority Lien Debt Obligations upon payment in full thereof or (ii) sales or dispositions subject to Section 5.01 of the Indenture;
(4) as to a release of all or substantially all of the Collateral, if (A) consent to release of that Collateral Agenthas been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officers’ Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained;
(5) if any Guarantor is released from its obligations under each of the Parity Lien Debt Documents, for itself then the Parity Liens on such Collateral and the obligations of such Guarantor under its Guarantee of the Parity Lien Debt Obligations, shall be automatically, unconditionally and simultaneously released;
(6) as to a release of any Collateral that is acquired by the Borrower or on behalf any Guarantor subject to, or is to be made subject to, a Lien in a transaction otherwise permitted by the Secured Debt Documents, and the terms of such Lien transaction required that such Collateral not be subject to any Priority Lien or Parity Lien; and
(7) notwithstanding any of the foregoing, if the Collateral Trustee is exercising its rights or remedies with respect to the Collateral under the Priority Lien Security Documents pursuant to an Act of Required Secured Parties, and the Collateral Trustee releases any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority Lien ObligationsDebt Obligations in connection therewith, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, Parity Liens on such Collateral, Collateral and the obligations of such Guarantor under its guaranty Guarantee of the New Second Parity Lien Convertible NotesDebt Obligations, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any the Collateral Trustee under the Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior Security Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and such the Collateral Trustee releases Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Parity Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the Priority Liens on such property or assets are released.
(b) The Collateral Trustee agrees for the benefit of the Borrower and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable;
(3) prior to the Discharge of Priority Lien Debt Obligations, the written confirmation of each Priority Lien Debt Representative (or, at any time after the Discharge of Priority Lien Debt Obligations, each Parity Lien Debt Representative) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the respective Secured Debt Documents governing the Secured Obligations the holders of which such Secured Debt Representative represents; and
(4) to the extent and in the form required by Section 10.03 of the Indenture, an Opinion of Counsel; then the Collateral Agent. Subject Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or the applicable Guarantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any such sale, lease, exchange, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Borrower or the applicable Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Parity Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Collateral by any Guarantor permitted under the terms Act of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraphRequired Secured Parties pursuant to Section 4.1(a)(3), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds Trustee will deliver a copy of such Collateral), and the obligations Act of such Guarantor under its guaranty Required Secured Parties to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursan Officers’ Certificate and, to the extent that any Priority Lien Collateral Agentrequired, any Priority Lien Representative or Priority Lien Secured Parties an Opinion of Counsel from the Borrower pursuant to Section 4.1(b)(1) and (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor4), then the Collateral Agentit will, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementextent required by such Section, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless either provide (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given written confirmation required by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and Section 4.1(b)(3), (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.1(a) or (C) a request for further information from the Note DocumentsBorrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Debt or Series of Parity Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash and discharged (other than contingent indemnity obligations for which no claim has been made), (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreement, if in connection applicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(2) as to any Collateral of a Guarantor that is (A) released as a Guarantor under each Parity Lien Document and (B) is not obligated (as primary obligor or guarantor) with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or respect to any other exercise of any Priority Parity Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of Obligations and so long as the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to respective release does not violate the terms of any Parity Lien Document which then remains in effect;
(3) as to any Collateral of the Intercreditor AgreementCompany or a Guarantor that is sold, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of by the Company or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Subsidiary of the Company and such Priority is permitted by all of the other Parity Lien Collateral Agent releases its Lien on Documents, at the property or assets time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Article 11 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Collateral Trustee certifying that all such necessary consents have been obtained; or
(7) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate (which the Collateral Trustee shall be entitled to rely upon) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and (D) such release of Collateral did not violate the terms of any applicable Parity Lien Document; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of the items required by this Section 4.1(b), upon request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(7), the Collateral Trustee shall execute and deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Priority Lien Collateral AgentAgent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to Section 4.1(a)(3), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Parity Lien Debt Default has occurred and is continuing, within three Business Days of the receipt by a Responsible Officer of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(4), the Collateral Agent certifying that all Trustee will deliver a copy of such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsAct of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject to (a) The First Liens upon the terms Collateral will be automatically released in each of the Intercreditor Agreementfollowing circumstances:
(i) as to all Collateral, if in connection with upon the Discharge of First Lien Obligations;
(ii) as to any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent of the Company or any other exercise Grantor that is sold, transferred or otherwise disposed of by the Company or any other Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Grantor in a transaction or other circumstance that is permitted (or not prohibited) by the Senior Credit Facility, the Term Loan Agreement and the other First Lien Documents or (y) as to any property constituting Excluded Assets (as defined in the Credit Agreements) and that is not required to be subject to a Lien pursuant to the First Lien Document of any Priority other series of First Lien Representative’s or Debt;
(iii) as to any Priority Collateral of a Grantor (other than the Company) that is released as a guarantor under each First Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior Document;
(iv) as to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf any other release of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other that is less than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes representatives at the time outstanding as provided for in the Note applicable First Lien Documents (with the consent of the Required First-Out Debtholders and Required Term Holders) and (B) ION the Company has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent relating thereto;
(v) as to any Collateral of the Company or any other Grantor that is foreclosed upon by the Collateral Agent or against which the Collateral Agent otherwise exercises its rights or remedies (including in connection with an Enforcement Action) (whether or not any Insolvency or Liquidation Proceeding is pending at the time) in each case, which results in a disposition of such Collateral wherein title to such Collateral is no longer held by any Grantor; provided that the Collateral Agent may elect, in its sole discretion, not to release the First Lien on such Collateral until sometime after its foreclosure or other disposition; or
(vi) as to any or all Collateral, with respect to any Series of First Lien Debt (but not any other Series of First Lien Debt), in accordance with the terms of the applicable First Lien Documents for such Series of First Lien Debt, upon written approval of the holder, agent or representative of such Indebtedness, as applicable, it being agreed that the release of any Collateral pursuant to this Section 4.1(a)(vi) shall not, of itself, result in a violation of Section 2.3(a).
(b) The Collateral Agent agrees for the benefit of the Company and the other Grantors that, if the Collateral Agent at any time receives:
(i) an Officer’s Certificate relating to any release or subordination of Collateral permitted herein certifying that all such consents have been obtained and such release or subordination is otherwise authorized and permitted hereunder; and
(ii) the proposed instrument or instruments releasing or subordinating the Liens as to such Collateral in recordable form, if applicable;
(iii) then, promptly following receipt by the Note DocumentsCollateral Agent of the items required by this Section 4.1(b), upon written request of and at the expense of the Company, the Collateral Agent will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release or subordination to the Company or other applicable Grantor.
(c) The Collateral Agent hereby agrees that in the case of any release pursuant to Section 4.1(a)(ii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Agent will either (i) be present at and deliver the release at the closing of such transaction or (ii) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release.
Appears in 1 contract
Samples: Collateral Agency Agreement (HighPeak Energy, Inc.)
Release of Liens on Collateral. Subject (a) The Collateral Agent’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged (or, in the case of Hedging Obligations, the cash collateralization of all such Hedging Obligations (or other arrangements with respect to all such Hedging Obligations) on terms reasonably satisfactory to each applicable counterparty, and the expiration and termination of all outstanding transactions under Hedging Agreements (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time)) and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination, cash collateralization (at the lower of (1) 103% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents or the issuance of a back to back letter of credit in favor of the issuer of any such outstanding letter of credit in an amount equal to the amount described in the parenthetical clause above and issued by a financial institution reasonably acceptable to such issuer;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action transferred or otherwise disposed of by any Priority Lien Representative or any Priority Lien Collateral Agent the Borrower or any other exercise Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Subsidiary of any Priority Lien Representative’s the Borrower in a transaction or any Priority Lien other circumstance that complies with and is permitted by all of the Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Agent’s remedies in respect Liens upon the Collateral will not be released if the sale or disposition is subject to the [“Merger, Consolidation or Sale of Assets”] provisions of the CollateralIndenture unless the Borrower has complied with the procedures and requirements in connection therewith set forth in the Indenture;
(3) as to a release of less than all or substantially all of the Collateral (other than pursuant to clause (2) above), in each case if (A) consent to the release of all First Liens (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Priority Second Lien Obligations, the Second Liens, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Liens) on such Priority Collateral has been given by an Act of Required Secured Parties and consent to the release of all Second Liens on such Collateral has been given by the Required Second Lien Debtholders or (B) the First Liens (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Second Lien Obligations, the Second Liens, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Liens) on such Collateral Agenthave been automatically released pursuant to the First Lien Documents (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Second Lien Obligations, the Second Lien Documents, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Third Lien Documents) and the Second Liens on such Collateral have been automatically released pursuant to the Second Lien Documents; provided, that this clause (3) shall not apply to (i) Discharge of First Lien Obligations upon payment in full thereof or Discharge of Second Lien Obligations upon payment in full thereof or (ii) sales or dispositions subject to the [“Merger, Consolidation or Sale of Assets”] provisions of the Indenture unless the Borrower has complied with the procedures and requirements in connection therewith set forth in the Indenture;
(4) as to a release of all or substantially all of the Collateral (other than pursuant to clause (1) above), if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for itself or in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officers’ Certificate to the Collateral Agent certifying that any such necessary consents have been obtained;
(5) if any Guarantor is released from its obligations under each of the Second Lien Documents, then the Second Liens on behalf such Collateral and the obligations of such Guarantor under its Guarantee of the Second Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(6) if any Guarantor is released from its obligations under each of the Third Lien Documents, then the Third Liens on such Collateral and the obligations of such Guarantor under its Guarantee of the Third Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(7) notwithstanding any of the Priority foregoing, if the Collateral Agent is exercising its rights or remedies with respect to the Collateral under the First Lien Security Documents pursuant to an Act of Required Secured Parties, and the Collateral Agent releases any of its the First Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority First Lien ObligationsObligations in connection therewith, then the Liens, if any, of Second Liens and the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, Third Liens on such Collateral, Collateral and the obligations of such Guarantor under its guaranty Guarantee of the New Second Lien Convertible NotesObligations and the Third Lien Obligations, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any Priority the Collateral Agent under the First Lien Representative or any Priority Lien Collateral Agent, in each case prior Security Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien the Collateral Agent releases its Lien First Liens on the property or assets of such Person then the Second Liens of and the Collateral Agent Third Liens with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the First Liens on such property or assets are released; provided, however, that the release of such Priority Lien the Second Liens and the Third Liens on Collateral Agent. Subject pursuant to this paragraph (7) shall not occur with respect to any Collateral, the net cash proceeds of the disposition of which will not be applied to repay (and, to the terms extent applicable, to reduce permanently commitments with respect to) the First Lien Obligations without the consent of the Intercreditor AgreementSecond Lien Administrative Agent or the Trustee, if any Priority Lien Collateral Agent, for itself or on behalf of as the case may be; and
(8) notwithstanding any of the Priority foregoing, if the Collateral Agent is exercising its rights or remedies with respect to the Collateral under the Second Lien Security Documents pursuant to an Act of Required Secured Parties represented by itParties, and the Collateral Agent releases any of its the Second Liens on any part of the Collateral, Collateral or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority Second Lien Obligations, Obligations in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligationstherewith, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, Third Liens on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty Guarantee of the New Second Third Lien Convertible NotesObligations, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs If in connection with the Priority Lien Secured Parties’ foreclosure upon or other any exercise of rights and remedies by the Collateral Agent under the Second Lien Security Documents pursuant to an Act of Required Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and the Collateral Agent releases Second Liens on the property or assets of such Person then the Third Liens with respect to the property or assets of such Collateral)Person will be concurrently and automatically released to the same extent as the Second Liens on such property or assets are released; provided, no however, that the release of the Third Liens on such Collateral securing pursuant to this paragraph (8) shall not occur with respect to any Collateral, the New net cash proceeds of the disposition of which will not be applied to repay (and, to the extent applicable, to reduce permanently commitments with respect to) the Second Lien Convertible Notes shall be made unless Obligations without the consent of the Trustee.
(b) The Collateral Agent agrees for the benefit of the Borrower and the other Grantors that if the Collateral Agent at any time receives:
(1) an Officers’ Certificate stating that (A) consent the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Liens securing officer, such conditions precedent, if any, have been complied with;
(2) the New proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) prior to the Discharge of First Lien Obligations, the written confirmation of each First Lien Representative (or, at any time after the Discharge of First Lien Obligations and prior to the Discharge of Second Lien Convertible Notes has been Obligations, the Second Lien Administrative Agent, or at any time after both the Discharge of First Lien Obligations and the Discharge of Second Lien Obligations, the Trustee) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the requisite percentage or number of respective Secured Debt Documents governing the Secured Obligations the holders of New Second Lien Convertible Notes which such Secured Debt Representative represents; then the Collateral Agent will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or other applicable Grantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Agent.
(c) The Collateral Agent hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the time outstanding as provided for in written request of and at the Note Documents expense of the Borrower or other applicable Grantor, the Collateral Agent will either (A) be present at and deliver the release at the closing of such transaction or (B) ION deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Second Lien Debt or Third Lien Debt has delivered an officers’ certificate occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Secured Parties pursuant to the Priority Lien Collateral AgentSection 4.1(a)(3), the Trustee and the Collateral Agent certifying will deliver a copy of such Act of Required Secured Parties to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officers’ Certificate from the Borrower pursuant to Section 4.1(b)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 4.1(b)(3), (B) a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.1(a) or (C) a request for further information from the Note DocumentsBorrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within two Business Days of the receipt by it of any notice from the Collateral Agent pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Secured Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Samples: Intercreditor Agreement (Washington Consulting, Inc.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee's Liens upon the Collateral will be automatically released:
(i) in whole, upon (A) payment in full in cash of (1) all outstanding Parity Lien Debt and (2) all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash (other than contingent indemnity obligations for which no claim has been made), (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents, (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents, if and (D) as to any Series of Parity Lien Debt outstanding under Secured Hedge Agreements, the collateralization thereof with Eligible Collateral (as defined in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise the applicable Swap Contract) at the lower of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect (1) 105% of the Collateral, in each case prior to applicable Secured Hedge Counterparty’s Exposure and (2) the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations percentage of such Guarantor Secured Hedge Counterparty’s Exposure required for release of Liens under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection applicable Parity Lien Documents;
(ii) as to any Collateral of an Obligor that is (A) released as an Obligor under each Parity Lien Document and (B) is not obligated (as primary obligor or guarantor) with respect to any Enforcement Action or other exercise of rights Parity Lien Obligations and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to so long as the Discharge of Priority Lien Obligations, respective release does not violate the equity interests terms of any Person are foreclosed upon Parity Lien Document which then remains in effect;
(iii) as to any Collateral of any Obligor that is sold, transferred or otherwise disposed of and by any Obligor to a Person that is not (either before or after such Priority sale, transfer or disposition) the Parent or a Restricted Subsidiary (as defined in the Indenture) of the Parent in a transaction or other circumstance that is permitted by all of the Parity Lien Collateral Agent releases its Lien on Documents, at the property or assets time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Article 5 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(iv) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(v) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(vi) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Parent has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained; or
(vii) as to any properties or assets that become “Posted Credit Support” (as defined in any Secured Hedge Agreement), Working Capital Priority Collateral or Excluded Property.
(b) Without limiting the foregoing, each party hereto agrees that if the Collateral Trustee at any time receives:
(i) an Officers’ Certificate (in each case which the Collateral Trustee shall be entitled to rely upon) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and (D) such release is otherwise authorized and permitted of Collateral did not violate the terms of any applicable Parity Lien Document; and
(ii) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Note DocumentsCollateral Trustee of the items required by this Section 4.1(b), upon request of the Parent, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the applicable Obligor.
(c) The Collateral Trustee hereby agrees that:
(i) in the case of any release pursuant to Section 4.1(a)(iii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Parent or other applicable Obligor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(ii) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(iv), the Collateral Trustee will deliver a copy of such Act of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (Calumet Specialty Products Partners, L.P.)
Release of Liens on Collateral. Subject to (a) The Collateral Trustee’s Liens upon the terms of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part will be released upon receipt of the Collateral or such Priority Lien Representative, for itself or on behalf of any Trustee of the Priority documents required by Section 4.1(b):
(1) in whole, upon (A) payment in full and discharge of all outstanding First Lien Secured Parties releases any Guarantor from its obligations under its guaranty Debt and all other First Lien Obligations that are outstanding, due and payable at the time all of the Priority First Lien Obligations, then the Liens, if any, Debt is paid in full and discharged and (B) termination or expiration of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second all commitments to extend credit under all First Lien Convertible Notes, on such Collateral, Documents and the obligations cancellation or termination or cash collateralization of such Guarantor under its guaranty all outstanding letters of the New Second credit issued pursuant to any First Lien Convertible NotesDocuments;
(2) as to any Collateral that is sold, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of by IGN or any other Pledgor to a Person that is not (either before or after such sale, transfer or disposition) IGN or a Subsidiary of IGN in a transaction or other circumstance that complies with Section 6.6 of the Note Purchase Agreement and such Priority Section 7.6 of the Credit Agreement and is permitted by all of the other First Lien Collateral Agent releases its Lien on Documents, at the property or assets time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementinterest sold, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, transferred or otherwise disposed of;
(3) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all First Liens has been given by an Act of Required Debtholders; and
(4) as to a release of all or substantially all of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of First Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable First Lien Documents and (B) ION IGN has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained obtained.
(b) The Collateral Trustee agrees for the benefit of IGN and the other Pledgors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other First Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable.
(3) in the case of a release pursuant to Section 4.1(a)(3) or (4), the documents referred to therein; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to IGN or other applicable Pledgor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of IGN or other applicable Pledgor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) within one Business Day of the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(3), the Collateral Trustee will deliver a copy of such Act of Required Debtholders to each First Lien Representative.
(d) Each First Lien Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officers’ Certificate from IGN pursuant to Section 4.1(b)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 4.1(b)(3), (B) a written statement that such release is otherwise authorized and not permitted by Section 4.1(a), or (C) a request for further information from IGN reasonably necessary to determine whether the Note Documentsproposed release is permitted by Section 4.1(a) and after receipt of such information such First Lien Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such First Lien Representative will deliver a copy of such notice to each registered holder of the Series of First Lien Debt for which it acts as First Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Priority Liens and the Parity Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full in cash and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation, termination, or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents or arrangement of substitute collateralization for such Priority Lien Debt which is satisfactory to the holder of such applicable Priority Lien Debt;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by any Borrower or any other Pledgor to a Person that is not (either before or after such sale, transfer or disposition) a Borrower or a Restricted Subsidiary (as defined under the Indenture) of any Borrower in a transaction or other circumstance that complies with Section 4.10 of the Indenture, if any, and is permitted by all of the other Secured Debt Documents or that is made in connection with any Enforcement Action an enforcement of a Priority Lien, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Parity Lien Collateral Agent’s Liens upon the Collateral will not be released if the sale or disposition (other than a sale or disposition made in connection with an enforcement of a Priority Lien) is subject to Section 5.01 of the Indenture;
(3) as to a release of less than all or substantially all of the Collateral, if consent to the release of all Priority Liens on such Collateral has been given by any an Act of Required Debtholders; and
(4) as to a release of all or substantially all of the Collateral, if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) the Borrowers have delivered an Officers’ Certificate to the Priority Lien Representative or Collateral Agent and the Parity Lien Collateral Agent certifying that any such necessary consents have been obtained.
(b) The Priority Lien Collateral Agent and the Parity Lien Collateral Agent agree for the benefit of the Borrowers and the other Pledgors that if the Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Parity Lien Collateral Agent, for itself as applicable, at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 5 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or on behalf of any of investigation as is necessary to enable him or her to express an informed opinion as to whether or not the Priority Lien conditions precedent in this Agreement and all other Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensDebt Documents, if any, relating to the release of the Collateral Agent, for itself, have been complied with and (C) in the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations opinion of such Guarantor under its guaranty of the New Second Lien Convertible Notesofficer, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreementsuch conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agentrecordable form, in each case if applicable; and
(3) prior to the Discharge of Priority Lien Obligations, the equity interests written confirmation of any Person are foreclosed upon or otherwise disposed of and such each Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets Representative (but excludingor, for the avoidance of doubt, at any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, time after the Discharge of Priority Lien Obligations, then each Parity Lien Representative) (such confirmation to be given following receipt of, and based solely on, the LiensOfficers’ Certificate described in clause (1) above) that, if anyin its view, of such release is permitted by Section 5.1(a) and the Collateral Agent, for itself or for respective Secured Debt Documents governing the benefit of Secured Obligations the holders of which such Secured Debt Representative represents;
(4) an Opinion of Counsel and any other documents required by, in the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty case of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee Indenture and the Trust Indenture Act of 1939, as amended. then the Priority Lien Collateral Agent or Parity Lien Collateral Agent, as applicable, will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrowers or other applicable Pledgor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 5.1(b) by the Priority Lien Collateral Agent or Parity Lien Collateral Agent, as applicable.
(c) The Priority Lien Collateral Agent and the Parity Lien Collateral Agent hereby agree that:
(1) in the case of any release pursuant to clause (2) of Section 5.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Borrowers or other applicable Pledgor, the Priority Lien Collateral Agent and the Parity Lien Collateral Agent, as requested, will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Parity Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Debtholders pursuant to Section 5.1(a)(3), the Priority Lien Collateral Agent prior to the Discharge of Parity Lien Obligations (and the Parity Lien Collateral Agent) thereafter will deliver a copy of such Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that within one Business Day of the receipt by it of any notice from the Priority Lien Collateral Agent prior to the Discharge of Parity Lien Obligations and the Collateral Agent certifying that all thereafter pursuant to Section 5.1(c)(2), such consents have been obtained and Secured Debt Representative will deliver a copy of such release is otherwise authorized and permitted by notice to each registered holder of the Note DocumentsSeries of Priority Lien Debt or Series of Parity Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Samples: Intercreditor Agreement (MagnaChip Semiconductor LTD (United Kingdom))
Release of Liens on Collateral. (a) Subject to Section 13.04 hereof, Collateral may be released from the Lien and security interest created by the Collateral Documents at any time or from time to time in accordance with the provisions of the Collateral Documents, the Intercreditor Agreement or as provided hereby. The Issuer and the Guarantors shall be entitled to a release of property and other assets included in the Collateral from the Liens securing the Notes, and the Trustee (subject to its receipt of an Officer’s Certificate as provided below) shall release, or instruct the Notes Collateral Agent to release, as applicable, the same from such Liens at the Issuer’s sole cost and expense, under one or more of the following circumstances:
(i) in whole, (a) upon payment in full and discharge of all obligations under this Indenture, the Guarantees and the Collateral Documents or (b) upon a Legal Defeasance or a Covenant Defeasance of the Notes in accordance with Article 8 hereof.
(ii) in part, to enable the Issuer or any Guarantor to sell, convey, transfer, exchange or otherwise dispose of any of the Collateral to the extent not prohibited under Section 4.10 hereof;
(iii) in part, in the case of a Guarantor that is released from its Guarantee pursuant to this Indenture, on all the property and assets of such Guarantor;
(iv) in part, to the extent property is subject to a lease from a third party that is not the Issuer or a Guarantor, upon termination or expiration of the lease;
(v) pursuant to an amendment or waiver in accordance with Article 9 hereof;
(vi) in part, (A) if the Liens on particular assets securing ABL Debt Obligations then secured by that asset are released or will be released simultaneously therewith (unless such release occurs in connection with the discharge in full of such ABL Debt Obligations, which discharge (1) is not in connection with a foreclosure of, or other exercise of remedies with respect to, the Collateral or (2) is not in connection with a replacement or refinancing of such ABL Debt Obligations, it being understood that in the case of this clause (2) the Notes will be secured on a second priority basis by Collateral that secures the Domestic Priority Debt that is outstanding after giving effect to any such replacement or refinancing, subject to the Agreed Security Principles and the Excluded Collateral Actions) or (B) if such assets do not secure any ABL Debt Obligations because a security interest is no longer granted in such assets to secure the ABL Debt Obligations, due to a waiver by the holders of ABL Debt Obligations or for any other reason (other than in the context described in the parenthetical phrase contained in subclause (A) of this clause (vi));
(vii) in part, with respect to Net Proceeds used for any one or more purposes permitted under Section 4.10 hereof; or
(viii) otherwise in accordance with the Agreed Security Principles and the Excluded Collateral Actions.
(b) Where permitted by the Collateral Documents and this Indenture, each release pursuant to Section 13.03(a) hereof shall be effected by the Notes Collateral Agent and the Trustee without the consent of the Holders.
(c) Upon receipt of an Officer’s Certificate certifying that all conditions precedent under this Indenture and the Collateral Documents, if any, to such release have been met and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Trustee shall, or shall cause the Notes Collateral Agent, to execute, deliver or acknowledge (at the Issuer’s expense) without recourse, representation or warranty, such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Collateral Documents or the Intercreditor Agreement. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in good faith in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Collateral Document to the contrary, the Trustee and 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.
(d) (I) Subject to the terms of the Intercreditor Agreement, if the junior priority liens on the Collateral securing the Notes shall terminate and be released automatically to the extent the first priority liens on the Collateral are released in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateralforeclosure of, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies with respect to, such Collateral by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien ABL Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent (except with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchangeconveyance, transfer or other disposition of any Collateral by any Guarantor permitted under the terms that remain after satisfaction in full of the Priority Lien Documents ABL Debt Obligations) (notwithstanding the existence of an Event of Default). (II) Except as set forth in Section 13.03(b) and not expressly prohibited under the terms Section 13.03(d)(I), no release of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new junior-priority liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (Ai) consent to the such release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible the Notes at the time outstanding as provided for in the applicable Note Documents Document and (Bii) ION the Issuer has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Notes Collateral Agent certifying that all such consents have been obtained obtained.
(e) For the avoidance of doubt, the Issuer and such the Guarantors will not need to comply with Section 313(b) of the Trust Indenture Act, relating to reports, and Section 314(d) of the Trust Indenture Act, relating to the release is otherwise authorized of property and permitted by to the Note Documentssubstitution of any property to be pledged as Collateral for the Notes.
Appears in 1 contract
Samples: Indenture (SunOpta Inc.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released in any of the following circumstances:
(i) in whole, as to both the First Liens and the Junior Liens, upon the later of the Discharge of First Lien Obligations and the Discharge of Junior Lien Obligations;
(ii) in whole, as to the terms First Lien only, upon the delivery of an Officer’s Certificate to the Intercreditor AgreementCollateral Trustee, if at any time when there has been a Discharge of First Lien Obligations;
(iii) in connection with whole, as to the Junior Lien only, upon the delivery of an Officer’s Certificate to the Collateral Trustee, at any Enforcement Action time when there has been a Discharge of Junior Lien Obligations;
(iv) as to a release of any Collateral that (x) becomes an Excluded Property or (y) is sold, transferred or otherwise disposed of by any Priority Lien Representative or any Priority Lien Collateral Agent the Borrower or any other exercise of any Priority Lien Representative’s Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Restricted Subsidiary (as defined in the Credit Agreement, Indenture or any Priority Lien Collateral Agent’s remedies other Secured Debt Document) in respect a transaction or other circumstance that complies with each applicable Secured Debt Document; provided, that this clause (iv) shall not apply to disposition subject to Section 7.1 (Restrictions on Fundamental Changes) of the CollateralCredit Agreement or Article 5 (Successors) of the Indenture;
(v) as to a release of less than all or substantially all of the Collateral (other than pursuant to clause (iv) above), if directed by an Act of Required Secured Parties accompanied by an Officers’ Certificate to the effect that the release was permitted by each applicable Secured Debt Document; provided, that this clause (v) shall not apply (A) in each the case prior to of the Discharge of Priority First Lien Obligations, such Priority Lien Collateral Agent, for itself Obligations or (B) to sales or dispositions subject to Section 7.1 (Restrictions on behalf of any Fundamental Changes) of the Priority Lien Secured Parties, releases any Credit Agreement or Article 5 (Successors) of its Liens on any part the Indenture;
(vi) as to a release of all or substantially all of the Collateral (other than pursuant to clauses (i), (ii) or (iii) above), if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officers’ Certificate to the Collateral Trustee certifying that any such Priority necessary consents have been obtained;
(vii) (A) if the Junior Lien Debt Representative, for itself or and on behalf of any of the Priority other Junior Lien Secured Parties releases any Guarantor Grantor from its obligations under its guaranty Guarantee of the Priority Junior Lien Obligations in connection with a transaction permitted by the terms of the Junior Lien Documents that results in a Grantor ceasing to guarantee all of the Junior Lien Obligations, then the Liens, if any, of Junior Liens on the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on granted by such Collateral, Grantor and the obligations of such Guarantor Grantor under its guaranty Guarantee of the New Second Junior Lien Convertible NotesObligations, shall be automatically, unconditionally and simultaneously released. Subject , (B) if the First Lien Debt Representative, for itself and on behalf of the other First Lien Secured Parties releases any Grantor from its obligations under its Guarantee of the First Lien Obligations in connection with a transaction permitted by the terms of the First Lien Documents that results in a Grantor ceasing to guarantee all of the First Lien Obligations, then the First Liens on the Collateral granted by such Grantor and the obligations of such Grantor under its Guarantee of the First Lien Obligations, shall be automatically, unconditionally and simultaneously released, and (C) if any Grantor that is a Harsh Environment Subsidiary (as defined in the Credit Agreement) ceases to be a Restricted Subsidiary (as defined in and pursuant to the terms of the Intercreditor AgreementIndenture), then the Junior Liens and the First Liens on the Collateral granted by such Grantor and the obligations of such Grantor under its Guarantee of the Junior Lien Obligations and the First Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(viii) as to the Junior Lien only, upon (A) release (other than a release as a result of the Discharge of First Lien Obligations) of the First Lien on such Collateral pursuant to the First Lien Documents and (B) delivery by the Borrower to the Collateral Trustee of an Officer’s Certificate certifying as to the same; and
(ix) notwithstanding any of the foregoing, (A) if the Collateral Trustee is exercising its rights or remedies with respect to the Collateral under the First Lien Collateral Documents pursuant to an Act of Required Secured Parties, and the Collateral Trustee releases any of the First Liens on any part of the Collateral or any Grantor is released from its obligations under its Guarantee of the First Lien Obligations in connection therewith, then the Junior Liens on such Collateral and the obligations of such Grantor under its Guarantee of the Junior Lien Obligations shall be automatically, unconditionally and simultaneously released and (B) if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority the Collateral Trustee under the First Lien Collateral Agent, in each case prior Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Secured Parties, the equity interests Capital Stock of any Person are foreclosed upon or otherwise disposed of and such Priority Lien the Collateral Agent Trustee releases its the First Lien on the property or assets of such Person then the Junior Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the First Liens on such property or assets are released.
(b) The Collateral Trustee agrees for the benefit of the Borrower and the other Grantors that if the Collateral Trustee at any time receives
(i) an Officers’ Certificate stating that (A) the signing officer has read Article IV of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Priority officer, such conditions precedent, if any, have been complied with;
(ii) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(iii) prior to the Discharge of First Lien Obligations, the written confirmation of each First Lien Debt Representative (or, at any time after the Discharge of First Lien Obligations, each Junior Lien Debt Representative) (such confirmation to be given following receipt of, and may be based solely on, the Officers’ Certificate described in clause (i) above) that, in its view, such release is permitted by the respective Secured Debt Documents governing the Secured Obligations the holders of which such Secured Debt Representative represents; then the Collateral Agent. Subject Trustee will, upon the written request of the Borrower and at the cost of the Borrower, execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or other applicable Grantor on or before the later of (x) the date specified in such request for such release and (y) the next Business Day after the date of receipt of the items required by this Section 4.01(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(i) in the case of any release pursuant to clause (iv) of Section 4.01(a), if the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any such sale, lease, exchange, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Borrower or other applicable Grantor, the Collateral Trustee will either (A) deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(ii) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Junior Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Collateral by any Guarantor permitted under the terms Act of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraphRequired Secured Parties pursuant to Section 4.01(a)(v), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds Trustee will deliver a copy of such Collateral)Act of Required Secured Parties to each Secured Debt Representative.
(d) Each Secured Debt Representative xxxxxx agrees that:
(i) as soon as reasonably practicable after receipt of an Officers’ Certificate from the Borrower pursuant to Section 4.01(b)(i) but in no event later than one Business Day thereafter, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursit will, to the extent required by Section 4.01(b)(iii), either provide (A) the written confirmation required by Section 4.01(b)(iii), (B) a written statement that any Priority Lien Collateral Agentsuch release is not permitted by Section 4.01(a) or (C) a request for further information from the Borrower reasonably necessary to determine whether the proposed release is permitted by Section 4.01(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or as applicable; and
(ii) obtain within one Business Day of the receipt by it of any new liens or additional guarantees notice from any Guarantor, then the Collateral AgentTrustee pursuant to Section 4.01(c)(ii), for itself and the Parity Lien such Secured Parties, shall be granted Debt Representative will deliver a Lien on any copy of such Collateral, subject notice to the lien subordination provisions each registered holder of the Intercreditor Agreement, and the Trustee, Series of First Lien Debt or Series of Junior Lien Debt for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, which it acts as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsDebt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee's Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Parity Lien Debt and all other Parity Secured Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents;
(2) as to any Collateral if (A) such Collateral is being sold, transferred or otherwise disposed of by the Company or any other Pledgor in a transaction that complies with the terms and conditions of the Indenture, the Security Agreement and is permitted by all of the other Secured Debt Documents and the release of the Collateral will not result in a Secured Debt Default and (B) Company has delivered an Officers' Certificate to the Collateral Trustee certifying all of the foregoing;
(3) if any Pledgor is released from its Note Guarantee in accordance with the terms of the Intercreditor Indenture, that Pledgor's assets constituting Collateral will also be released;
(4) if any asset that is an Excluded Asset (as defined in the Security Agreement, if ) becomes subject to a Lien in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part favor of the Collateral or such Priority Lien RepresentativeTrustee, for itself or on behalf of that Collateral will be released; and
(5) as to any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensCollateral, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (Aa) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by an Act of Required Debtholders (in accordance with the requisite percentage or number of Indenture and the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents TIA), and (Bb) ION Company has delivered an officers’ ' certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Pledgors that if the Collateral Trustee at any time receives:
(1) an Officers' Certificate specifying the Collateral to be released and the paragraph number(s) of Section 4.1(a) under which such Collateral shall be released and stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release is otherwise authorized to the Company or other applicable Pledgor on or before the later of (x) the date specified in such request for such release and permitted (y) the third Business Day after the date of receipt of the items required by (1) and (2) of this Section 4.1(b) by the Note Collateral Trustee; provided, however, that if at least one Business Day prior to the date of such release the Collateral Trustee shall have received a notice from or on behalf of any Secured Debt Representative that any of the certifications contained in the Officers' Certificate in (1) above were incorrect, such release shall not occur until such notice from such Secured Debt Representative shall have been withdrawn.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the Company shall indicate in its written request that the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, pursuant to such written request and at the expense of the Company or other applicable Pledgor, the Collateral Trustee will either (A) be present (or arrange to have its agent or other representative present) at and deliver the release at the closing of such transaction or (B) deliver the release under customary arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Parity Lien Debt has occurred and is continuing, within three Business Days of the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(3), the Collateral Trustee will deliver a copy of such Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that it shall deliver a copy of any notice from the Collateral Trustee received pursuant to Section 4.1(c)(2), to holders of Parity Lien Debt in accordance with the relevant Parity Lien Documents.
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Release of Liens on Collateral. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien The Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien shall release its Liens upon the Collateral Agent’s remedies in respect of upon the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf occurrence of any of the Priority Lien following:
(a) in whole, upon the earlier of (x) the Security Release Date (as defined under the Credit Agreement) and (y) the Secured Parties, releases any of its Liens on any part Debt Termination Date; and
(b) upon the written request of the Collateral or such Priority Lien Representative, for itself or on behalf of any of Company and the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of applicable Grantor to the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject as to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agentsuch release is permitted by the terms of all of the Pari Passu Debt Documents which then remain in effect; provided, any Priority Lien Representative or Priority Lien Secured Parties that (i) have released any Lien on the Company has delivered an Officer’s Certificate to the Collateral or any Guarantor from its obligation under its guaranty and Agent certifying that any such Liens or guaranty are later reinstated or release is permitted by all of the Pari Passu Debt Documents which then remain in effect, and (ii) obtain any new liens or additional guarantees from any Guarantor, then if requested by the Collateral AgentAgent of any Pari Passu Debt Representative, such Pari Passu Debt Representative has delivered a certificate to the Collateral Agent certifying that any such release is permitted by all of the applicable Pari Passu Debt Documents for itself which such Pari Passu Debt Representative acts. Notwithstanding the foregoing, at any time that any Grantor desires that the Collateral Agent take any action to acknowledge or give effect to any release of Collateral pursuant to the foregoing provisions of this Section 4.1, including authorizing the filing by such Grantor of any UCC-3 termination or amendment statements, the Company and the Parity Lien Secured Parties, respective Grantor shall be granted a Lien on any such Collateral, subject deliver to the lien subordination provisions Collateral Agent a certificate signed by a Responsible Officer of the Intercreditor Agreement, Company and such Grantor stating that the Trustee, for itself and for the holders release of the New Second Lien Convertible Notes, shall be granted an additional guarantyrespective Collateral is permitted pursuant to Section 4.1(a) or (b), as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary determining whether any release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral)is permitted, no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained shall be entitled to conclusively rely on any Officer’s Certificate furnished to it pursuant to the immediately preceding sentence. All actions taken pursuant to this Section 4.1 shall be at the sole cost and such release is otherwise authorized expense of the Company and permitted by the Note Documentsrespective Grantor.
Appears in 1 contract
Release of Liens on Collateral. Subject to (a) The Collateral Trustee’s Liens upon the terms of the Intercreditor AgreementCollateral will be released:
(1) in whole, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to upon (A) the Discharge of Priority Parity Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee Obligations and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to (B) the Discharge of Priority Junior Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect ;
(2) as to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of all Parity Liens on such Liens securing the New Second Lien Convertible Notes Collateral has been given by the requisite percentage or number an Act of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents Required Debtholders and (B) ION such release has delivered become effective in accordance with the terms of such consent;
(3) as to (A) deposits in any cash collateral account that are to be applied to fund any mandatory prepayment or purpose offer (including an officersAsset Sale Offer (as defined in the Indenture)) that becomes required as to any Secured Debt as a result of a sale of assets, concurrently with such application, so long as effective provision is made for apportionment of such funding to all holders of Secured Debt entitled to participate in such mandatory prepayment or purchase offer in accordance with their respective entitlements under the Secured Debt Documents; and (B) deposits in any cash collateral account that constitute proceeds from an asset sale that are permitted under the Secured Debt Documents to be reinvested or otherwise are not required under the Secured Debt Documents to be reinvested or otherwise are not required to be applied to a mandatory prepayment or purchase offer in respect of any Secured Debt, concurrently with such reinvestment in assets constituting Collateral or other permitted use under the Secured Debt Documents;
(4) in accordance with the provisions of this Agreement and the other Security Documents as in effect from time to time, as applicable; or
(5) upon any sale, transfer or other disposition of Collateral if such sale, transfer or other disposition is not prohibited by the terms of the Indenture or any other Secured Debt Document; provided that if such sale, transfer or other disposition constitutes an Asset Sale, the Company will apply the proceeds in accordance with the Indenture and any other applicable Parity Lien Document; or
(6) as otherwise permitted by the Indenture and each other Secured Debt Document.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Pledgors that if the Collateral Trustee at any time receives:
(1) an Officers’ certificate Certificate stating that (A) each signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the Priority release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien Collateral Agentas to such property in recordable form, if applicable; and
(3) prior to the Discharge of Parity Lien Obligations, the Trustee written confirmation of each Parity Lien Representative (or, at any time after the Discharge of Parity Lien Obligations, each Junior Lien Representative) (such confirmation to be given following receipt of, and based solely on, the Collateral Agent certifying that all such consents have been obtained and Officers’ Certificate described in clause (1) above) that, in its view, such release is otherwise authorized and permitted by Section 4.1(a) and the Note Documentsrespective Secured Debt Documents governing the Secured Obligations the holders of which such Secured Debt Representative represents; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Company or other applicable Pledgor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (5) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or other applicable Pledgor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Junior Lien Debt has occurred and is continuing as soon as reasonably practicable after the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(2), the Collateral Trustee will deliver a copy of such Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officers’ Certificate from the Company pursuant to Section 4.1(b)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 4.1(b)(3), (B) a written statement that such release is not permitted by Section 4.1(a) or (C) a request for further information from the Company reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) as soon as reasonably practicable after receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Parity Secured Debt or Series of Junior Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) TheWith respect to the Collateral securing any Series of Secured Debt, the Collateral Trustee’s Liens on thesuch Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding in respect of such Series of Secured Debt, due and payable at the time all of thesuch Series of Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents in respect of such Series of Secured Debt and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicablesuch Secured Debt Documents) of all outstanding letters of credit issued pursuant to anysuch Secured Debt Documents;
(2) (a) as to anysuch Collateral that is sold, transferred or otherwise disposed of by the Company or any Guarantor (including indirectly, by way of a sale or other disposition of Equity Interests of the Company or a Guarantor) to a Person that is not nor is required to be (either before or after such sale, transfer or disposition) the Company or a Guarantor pursuant to such Secured Debt Documents (not giving effect to any grace period set forth therein) in a transaction or other circumstance that is not prohibited by either Section 10.04 of the Term Credit Agreement (if then in effect) or by the terms of any applicable Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is pursuant to Section 10.03 of the Term Credit Agreement (if then in effect) or such applicable Secured Debt Document, in each case, under circumstances where the transferee is the Company or a Guarantor, and (b) as to any Collateral owned by any Person that ceases to be a Subsidiary of the Parent or a ceases to be a Credit Party in either case in a transaction or other circumstance that is not prohibited by the terms of the Term Credit Agreement (if then in effect) or anysuch other applicable Secured Debt Documents;
(3) [reserved];
(4) as to less than all or substantially all of thesuch Collateral, if in connection with any Enforcement Action by any (A) consent to the release of all Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies Liens in respect of the Collateralsuch Series of Secured Debt (or, in each case prior to at any time after the Discharge of Priority Lien Obligations, consent to the release of all Subordinated Liens in respect of such Series of Secured Debt) on such Collateral has been given by an Act ofthe written direction or consent of the applicable Required Priority Lien Collateral AgentDebtholders (or, for itself or on behalf of at any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to time after the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority applicable Required Subordinated Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of Debtholders) delivered to the Collateral Agent with respect Trustee and (B) the Company has delivered an Officer’s Certificate to the property or assets Collateral Trustee certifying that all requirements for such release (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on including that such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on constitutes less than all or substantially all of the Collateral Collateral) have been complied with;
(other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon 5) as to all or other exercise substantially all of rights and remedies with respect to such thesuch Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given thatsuch Collateral is permitted by the requisite percentage or number eachsuch Series of the holders of New Second Lien Convertible Notes Secured Debt at the time outstanding as provided for in the Note Documents applicable Secured Debt Documents, and (B) ION the Company has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all requirements for such consents release have been obtained complied with;
(6) if and to the extent (a) required by allsuch Series of Secured Debt at the time outstanding (including pursuant to Section 13.11 of the Term Credit Agreement) or (b) upon request of the Company, if such release is otherwise authorized permitted for allsuch Series of Secured Debt at the time outstanding without the consent of the holders thereof, in each case as provided for in the applicable Secured Debt Documents; or
(7) if and permitted to the extent required by Section 5.1 of the Note Intercreditor Agreement; and, in each such case, upon request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the Company; provided, however, to the extent the Company requests the Collateral Trustee to deliver evidence of the release of such Collateral in accordance with this Section 4.1(a), the Company will deliver to the Collateral Trustee an Officer’s Certificate to the effect that such release of such Collateral pursuant to this Section 4.1(a) did not violate the terms of any applicable Secured Debt Document. Notwithstanding the foregoing, subject to the Intercreditor Agreement, all Liens will remain attached to and enforceable against all proceeds of any sale or disposition to the extent provided in the other Secured Debt Documents.
(b) The Collateral Trustee agrees for the benefit of the Company and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officer’s Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all otherapplicable Secured Debt Documents, if any, relating to the release of the applicable Collateral have been complied with, (C) no Secured Debt Default has occurred and is continuing of the date of such Officer’s Certificate or will result from the release of such Lien, and (D) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) upon the reasonable request of the Collateral Trustee, a legal opinion of Company counsel to the effect that:
Appears in 1 contract
Samples: Refinancing Amendment and Successor Administrative Agent Agreement (MRC Global Inc.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Debt Obligations that are due and payable at the time all of the Secured Debt is paid in full and discharged (other than Hedging Obligations and Banking Product Obligations) and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents, or such letters of credit are backstopped by one or more standby letters of credit reasonably acceptable to the letter of credit issuer;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by any Grantor to a Person that is not (either before or after such sale, transfer or disposition) GXS or a Restricted Subsidiary of GXS in either (A) a foreclosure sale or other similar transaction approved by an Act of Required Debtholders or (B) a transaction or other circumstance that is permitted under the Indenture and is permitted by all of the other Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is subject to Article 5 of the Indenture or is subject to any covenant in the Revolving Credit Agreement prohibiting the release of such Liens in connection with any Enforcement Action by any Priority Lien Representative such sale or any Priority Lien Collateral Agent disposition;
(3) as to a release of less than all or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect substantially all of the Collateral, in each case prior if (a) consent to the release of all Priority Liens (or, at any time after the Discharge of Priority Lien Obligations, the Junior Liens) on such Priority Lien Collateral Agenthas been given by an Act of Required Debtholders and is permitted by all Secured Debt Documents and (b) the Grantors have delivered an Officers’ Certificate to the Collateral Trustee certifying that all such necessary consents have been obtained;
(4) as to a release of all or substantially all of the Collateral, if (A) consent to the release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for itself in the applicable Secured Debt Documents, and (B) the Grantors have delivered an Officers’ Certificate to the Collateral Trustee certifying that all such necessary consents have been obtained; and
(5) automatically as to any Equity Interests or on behalf other securities of any Affiliate of GXS (other than GXS, Inc. and its successors), if at any time Rule 3-16 of Regulation S-X under the Priority Lien Securities Act or any other law, rule or regulation requires or is interpreted by the SEC to require the filing with the SEC (or any other U.S. federal governmental agency) of separate financial statements of such Affiliate due to the fact that such Subsidiary’s Equity Interests or other securities are pledged to secure the Notes or any Subsidiary Guarantee, but only to the extent necessary to not be subject to such requirement. In addition, in the case of a Guarantor that is released from its Guarantee with respect a Series of Secured PartiesDebt, releases any of its the Liens on any part the assets and property of such Guarantor securing such Series of Secured Debt will be released.
(b) The Collateral Trustee agrees for the benefit of GXS and the other Grantors that, if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate (a copy of which shall also be provided to each Secured Debt Representative) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or such Priority Lien Representative, for itself investigation as is necessary to enable him or on behalf of any of her to express an informed opinion as to whether or not the Priority Lien conditions precedent in this Agreement and all other Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensDebt Documents, if any, relating to the release of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateralhave been complied with, and (C) in the obligations opinion of such Guarantor under its guaranty of the New Second Lien Convertible Notesofficer, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreementsuch conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments evidencing the release of such Lien as to such property in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agentrecordable form, in each case if applicable; and
(3) prior to the Discharge of Priority Lien Obligations, the equity interests written acknowledgement of any Person are foreclosed upon or otherwise disposed of and such each Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets Representative (but excludingor, for the avoidance of doubt, at any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, time after the Discharge of Priority Lien Obligations, each Junior Lien Representative) that it has received an Officers’ Certificate described in clause (1) above, which Officers’ Certificate certifies that such release is permitted by Section 4.1(a) and the respective Secured Debt Documents governing the Secured Debt Obligations the holders of which such Secured Debt Representative represents; then the Liens, if any, Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver to GXS or other applicable Grantor such documents evidencing the release of the Collateral AgentTrustee’s Liens on the applicable Collateral as GXS shall reasonably request on or before the fifth Business Day after the date of receipt (or deemed receipt) of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), for itself if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of GXS or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Junior Lien Debt has occurred and is continuing, within two Business Days of the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(3), the Collateral Trustee will deliver a copy of such Act of Required Debtholders to each Secured Debt Representative.
(d) The Collateral Trustee hereby further agrees that:
(1) if any Priority Lien Representative notifies the Collateral Trustee that it requests GXS or any other Grantor to make any necessary filings, registrations and recordings to create, preserve, protect and perfect the security interests granted by such Grantor to the Collateral Trustee for the benefit of the holders applicable Priority Lien Secured Parties under the Security Documents in respect of the New Second Collateral, the Collateral Trustee shall promptly notify GXS thereof and direct GXS or such other Grantor to take all such actions requested by such Priority Lien Convertible NotesRepresentative; and
(2) upon receipt by the Collateral Trustee of any notice or document delivered by GXS or any other Grantor under the Security Documents, on such the Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds Trustee shall promptly forward a copy of such Collateralnotice or document to each Priority Lien Representative.
(e) Each Secured Debt Representative hereby agrees that :
(1) as soon as reasonably practicable after receipt of an Officers’ Certificate from GXS pursuant to Section 4.1(b)(1), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursit will, to the extent that any Priority Lien Collateral Agentrequired by such Section, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then either provide to the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless Trustee (A) consent to the release written acknowledgment of receipt of such Liens securing the New Second Lien Convertible Notes has been given Officers’ Certificate required by the requisite percentage Section 4.1(b)(3) or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.1(a); provided that the Note Documentsfailure of any Secured Debt Representative to take either of the preceding actions within five (5) Business Days after receipt of such Officers’ Certificate shall be deemed to be the provision by such Secured Debt Representative of the written acknowledgment required by Section 4.1(b)(3); and
(2) within three (3) Business Days of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Debt or Series of Junior Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action transferred or otherwise disposed of by any Priority Lien Representative or any Priority Lien Collateral Agent the Borrower or any other exercise Pledgor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Restricted Subsidiary of the Borrower in a transaction or other circumstance that complies with Section 4.10 of the Indentures and is permitted by the Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is subject to Section 5.01 of the Indentures;
(3) as to a release of any Collateral constituting less than all or substantially all of the Shared Collateral, if consent to the release of all Priority Liens on such Collateral has been given by an Act of Required Debtholders;
(4) as to a release of any Collateral constituting less than all or substantially all of the Separate Collateral, if consent has been given by a majority of the holders of the Priority Lien Representative’s or any Priority Debt which have a Lien on the Separate Collateral Agent’s remedies in respect of the Collateralor, in each case prior to the after a Discharge of Priority Lien ObligationsDebt, such Priority Lien Collateral Agent, for itself or on behalf of any a majority of the Priority Lien Secured Parties, releases any of its Liens on any part holders of the Collateral Parity Lien Debt which have a Lien on the Separate Collateral;
(5) as to a release of all or such Priority Lien Representative, for itself or on behalf of any substantially all of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensShared Collateral, if any, (A) consent to the release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officers’ Certificate to the Collateral AgentTrustee certifying that any such necessary consents have been obtained; and
(6) as to any ABL Collateral, for itself, as provided in the Intercreditor Agreement.
(b) The Collateral Trustee and agrees for the benefit of the holders Borrower and the other Pledgors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the New Second Lien Convertible Notes, on such Collateral, Collateral have been complied with and (C) in the obligations opinion of such Guarantor under its guaranty of the New Second Lien Convertible Notesofficer, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreementsuch conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agentrecordable form, in each case if applicable; and
(3) prior to the Discharge of Priority Lien Obligations, the equity interests written confirmation of any Person are foreclosed upon or otherwise disposed of and such each Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets Representative (but excludingor, for the avoidance of doubt, at any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, time after the Discharge of Priority Lien Obligations, then each Parity Lien Representative) (such confirmation to be given following receipt of, and based solely on, the LiensOfficers’ Certificate described in clause (1) above, if anyupon which Officers’ Certificate each Parity Lien Representative may conclusively rely) that, of in its view, such release is permitted by Section 4.1(a) and the Collateral Agent, for itself or for respective Secured Debt Documents governing the benefit of Secured Obligations the holders of which such Secured Debt Representative represents; then the New Second Lien Convertible NotesCollateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or other applicable Pledgor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), on if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Borrower or other applicable Pledgor, the Collateral Trustee will either (but excluding, for A) be present at and deliver the avoidance of doubt, any Liens on release at the proceeds closing of such Collateraltransaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Parity Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Debtholders pursuant to Section 4.l(a)(3), and the obligations Collateral Trustee will deliver a copy of such Guarantor under its guaranty Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officers’ Certificate from the New Second Lien Convertible NotesBorrower (upon which each Secured Debt Representative may conclusively rely) pursuant to Section 4.l(b)(l), shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursit will, to the extent that any Priority Lien Collateral Agentrequired by such Section, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless cither provide (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given written confirmation required by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and Section 4.1(b)(3), (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.l(a) or (C) a request for further information from the Note DocumentsBorrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4. l(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Debt or Series of Parity Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (NewPage Energy Services LLC)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s (but not the ABL Agent’s or other representative’s with respect to any ABL Debt Obligations) Liens on the Collateral will be released: COLLATERAL TRUST AGREEMENT
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action transferred or otherwise disposed of by any Priority Lien Representative Stream or any Priority Lien Collateral Agent Guarantor (including indirectly, by way of a sale or any other exercise disposition of Capital Stock of a Guarantor) to a Person that is not (either before or after such sale, transfer or disposition) Stream or a Restricted Subsidiary of Stream in a transaction or other circumstance that is not prohibited by either Section 4.10 of the Indenture or by the terms of any Priority Lien Representativeapplicable Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is subject to Section 5.01 of the Indenture;
(3) upon completion of any Priority Lien Collateral Agent’s remedies Repurchase Offer (as defined in the Indenture) conducted in compliance with Section 3.08 of the Indenture to the extent any Net Proceeds (as defined in the Indenture) constituted Excess Proceeds (as defined in the Indenture) with respect to such Repurchase Offer (as defined in the Indenture) and remain unexpended following the consummation of such Repurchase Offer;
(4) as to less than all or substantially all of the Collateral, in each case prior if consent to the release of all Priority Liens (or, at any time after the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject consent to the terms release of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assetsall Subordinated Liens) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral has been given by an Act of Required Debtholders;
(but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, 5) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note Documents applicable Secured Debt Documents, and (B) ION Stream has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained, or
(6) if and to the extent required by Section 2.05(a) of the Intercreditor Agreement; and, in each such case, upon request of Stream, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to Stream; provided, however, to the extent Stream requests the Collateral Trustee to deliver evidence of the release of Collateral in accordance with this Section 4.1(a), Stream will deliver to the Collateral Trustee an Officers’ Certificate to the effect that such release of Collateral pursuant to this Section 4.1(a) did not violate the terms of any applicable Secured Debt Document or the ABL Debt Documents. Notwithstanding the foregoing, subject to the Intercreditor Agreement, all Liens will remain attached to and enforceable against all proceeds of any sale or disposition. COLLATERAL TRUST AGREEMENT
(b) The Collateral Trustee agrees for the benefit of Stream and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate and an Opinion of Counsel stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is otherwise authorized necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and permitted all other Secured Debt Documents and the ABL Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to Stream or Guarantors as soon as practicable, but no later than the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Note DocumentsCollateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of Stream or Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Subordinated Lien Debt has occurred and is continuing, within two Business Days of the receipt by it of any Act of Required Debtholders pursuant to Section 4.1(a)(4), the Collateral Trustee will deliver a copy of such Act of Required Debtholders to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Debt or Series of Subordinated Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (Stream Global Services, Inc.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization in an account maintained by the Collateral Trustee (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents, provided the Company has delivered an Officer’s Certificate to the Collateral Trustee and, if reasonably requested by the Collateral Trustee, an opinion of counsel certifying that the conditions described in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, this Section 4.1(a)(1) have been met and that such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part release of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to does not violate the terms of the Intercreditor AgreementSecured Debt Documents or the Security Documents;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any Guarantor (including indirectly, by way of a sale or other disposition of Capital Stock of that Guarantor) to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on sale, transfer or disposition) the property Company or assets of such Person then the Liens of the Collateral Agent with respect to the property a Guarantor in a transaction or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to other circumstance that is not prohibited by the terms of any applicable Secured Debt Documents, at the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf time of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any such sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under or to the terms extent of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (interest sold, transferred or otherwise disposed of, provided, that, other than in connection with an Enforcement Action Ordinary Course Activity, the Company has delivered an Officer’s Certificate and, if reasonably requested by the Collateral Trustee, an opinion of counsel to the Collateral Trustee certifying that any such sale, transfer or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect disposition does not violate the terms of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral applicable Secured Debt Documents;
(but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, 3) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of all Parity Liens (or, at any time after the Discharge of Parity Lien Obligations, consent to the release of all Junior Liens) on such Liens securing the New Second Lien Convertible Notes Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note Parity Lien Documents (or, at any time after the Discharge of Parity Lien Obligations, the requisite percentage or number of holders of each Series of Junior Lien Debt at the time outstanding as provided for in the Junior Lien Documents) and (B) the Company has delivered an Officer’s Certificate and, if reasonably requested by the Collateral Trustee, an opinion of counsel to the Collateral Trustee certifying that any such necessary consents have been obtained and that such release of the Collateral does not violate the terms of the Secured Debt Documents or the Security Documents; and
(4) as to a release of all or substantially all of the Collateral, if (A) consent to the release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate and, if reasonably requested by the Collateral Trustee, an opinion of counsel to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained and that any such release does not violate the terms of the Secured Debt Documents or the Security Documents.
(b) The Collateral Trustee agrees for the benefit of the Company and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate to its reasonable satisfaction stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is otherwise authorized necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and permitted all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) an opinion of counsel if required by this Section 4 in form satisfactory to it, then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Company or Guarantors on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Note DocumentsCollateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) within one Business Day of the receipt by it of any Officer’s Certificate in support of a release of Collateral pursuant to Section 4.1(a) or 4.1(b), the Collateral Trustee will deliver a copy of such Officer’s Certificate to each Junior Lien Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (Terremark Worldwide Inc.)
Release of Liens on Collateral. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien (a) The Collateral Agent or any other exercise of any Priority Lien RepresentativeTrustee’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of upon the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to released:
(i) in whole, upon (A) payment in full in cash and Discharge of Parity Lien Obligations that are outstanding, due and payable at the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms time all of the Intercreditor AgreementParity Lien Debt is paid in full in cash and discharged, if any Priority (B) termination or expiration of all commitments to extend credit under all Parity Lien Collateral Agent, for itself Documents and (C) the cancellation or on behalf termination or cash collateralization (at the lower of any (1) 105% of the Priority Lien Secured Parties represented by it, releases any aggregate undrawn amount of its Liens on any part outstanding letters of credit and (2) the percentage of the Collateral, or any Priority Lien Representative, aggregate undrawn amount required for itself or on behalf release of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted Liens under the terms of the Priority applicable Parity Lien Documents Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(ii) as to any Collateral of a Grantor or Guarantor that is (A) released as a Grantor or Guarantor, as applicable, under each Parity Lien Document and (B) is not expressly prohibited under obligated (as primary obligor or guarantor) with respect to any other Parity Lien Obligations and so long as the respective release does not violate the terms of any Parity Lien Document which then remains in effect;
(iii) as to any Collateral of the Note Documents Company, any Grantor or any Guarantor that is sold, transferred or otherwise disposed of by the Company, any Grantor or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Restricted Subsidiary of the Company in a transaction or other circumstance that complies with Section 4.10 of the Second Lien Indenture (other than in connection with an Enforcement Action any sale, disposition or other exercise of transaction solely between or among any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case Grantors or any Guarantors and other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the obligation to apply proceeds of such CollateralAsset Sale as provided in such Section), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, ;
(iv) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(v) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(vi) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and satisfaction of any other conditions precedent provided for in the applicable Parity Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained and any conditions precedent in the applicable Parity Lien Documents have been satisfied;
(vii) as to a release of Collateral effected in connection with the enforcement or exercise of rights or remedies by the Collateral Trustee with respect to its Liens in such Collateral, if direction of such enforcement or exercise has been given by an Act of Parity Lien Debtholders; or
(viii) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement; or
(ix) if the Liens on the Collateral are released pursuant to a sale of Collateral pursuant to section 363 of the Bankruptcy Code or pursuant to a Plan of Reorganization, provided that the Liens on such Collateral attach to the proceeds of such sale and any proceeds are applied in accordance with this Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if the Collateral Trustee at any time receives:
(i) an Officers’ Certificate and an Opinion of Counsel each stating that (A) the signing Officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Officer, such conditions precedent, if any, have been complied with; and
(ii) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of the items required by this Section 4.1(b), upon written request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release is otherwise authorized to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(vii), the Collateral Trustee shall execute and permitted deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Note DocumentsPriority Lien Collateral Agent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(i) in the case of any release pursuant to Section 4.1(a)(iii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(ii) at any time when a Parity Lien Debt Default has occurred and is continuing, within three Business Days of the receipt by it of any Act of Parity Lien Debtholders, the Collateral Trustee, pursuant to Section 4.1(a)(iv), will deliver a copy of such Act of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral securing the Obligations will automatically and without the need for any further action by any Person be released in any of the following circumstances:
(1) in whole or in part, as applicable, as to all or any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances or that is or becomes an Excluded Asset;
(2) in whole upon:
(1) satisfaction and discharge of this Indenture pursuant to Article 11; or
(2) a legal defeasance or covenant defeasance of this Indenture pursuant to Article 8;
(3) in part, as to any property that (a) is sold, transferred or otherwise disposed of by the Issuers or any Guarantor (other than to the terms Issuers or another Guarantor) in a transaction not prohibited by this Indenture at the time of the Intercreditor Agreementsuch sale, if transfer or disposition or in connection with any Enforcement Action exercise of remedies pursuant to this Indenture or the Collateral Trust Agreement, (b) is owned or at any time acquired by any Priority Lien Representative a Guarantor that has been released from its Guarantee in accordance with this Indenture, concurrently with the release of such Guarantee (including in connection with the designation of a Guarantor as an Unrestricted Subsidiary) or (c) is a Permitted Receivables Facility Asset that is sold, transferred or otherwise disposed by the Issuers or any Priority Lien Collateral Agent Guarantor to a Receivables Entity in connection with a Permitted Receivables Facility or any other exercise of any Priority Lien Representative’s (d) becomes an Excluded Asset;
(4) in whole or any Priority Lien Collateral Agent’s remedies in respect of part, with the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit consent of the holders of the New Second Lien Convertible Notes, on such Collateral, requisite percentage of Notes in accordance with Article 9 and the obligations upon delivery of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally instructions and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agentdocumentation, in each case prior to the Discharge of Priority Lien Obligationsas required by this Indenture, the equity interests of any Person are foreclosed upon or otherwise disposed of Security Documents and such Priority Lien the Collateral Agent releases its Lien on Trust Agreement;
(5) in part, in accordance with the property or assets of such Person then the Liens applicable provisions of the Security Documents and the Collateral Agent with respect to Trust Agreement; and
(6) in whole, upon the property occurrence of the Fall Away Date as set forth in Section 4.20.
(b) An Issuer or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will Guarantor shall be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under the Collateral Trust Agreement and the other Security Documents and the Collateral Trustee’s Liens upon the Collateral of such Issuer or Guarantor and the capital stock or other equity interests of such Issuer or Guarantor shall be automatically released if such Issuer or Guarantor (x) ceases to be a Restricted Subsidiary or (y) becomes an Excluded Subsidiary; provided that the Parent has elected for such Excluded Subsidiary to be released in accordance with the 2017 Credit Agreement. Notwithstanding anything to the contrary herein, the Collateral Trustee is irrevocably authorized by the Trustee and each Holder, by its guaranty acceptance of the Priority Notes, to:
(a) subordinate or release its Lien Obligations, on any property in connection with any sale, lease, exchange, transfer or other disposition the incurrence of any Collateral by any Guarantor permitted under the terms Indebtedness pursuant to clause (11) or (13) of the Priority definition of “Permitted Debt”; and
(b) subordinate its Lien Documents and not expressly prohibited under on any property to the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise holder of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed on such property that is permitted by the previous paragraphclause (4), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral5), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes(7), shall be automatically(10), unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs(12), (16), (17), (20), (23), (25), (26), (33), (34), (35), (39), (40) (to the extent that the relevant Lien is of the type to which the Lien of the Collateral Trustee may otherwise be required to be subordinated under this clause (b) pursuant to any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties of the other Permitted Liens that are expressly included in this clause (ib)) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii41) obtain any new liens of the definition of “Permitted Liens” or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateralwith respect to which, subject to the lien subordination provisions Collateral Trust Agreement, the consent of the Intercreditor Agreement, and the Trustee, for itself and for the holders Holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage or number of Notes in accordance with the holders of New Second Lien Convertible Notes at the time outstanding as provided for provisions described in the Note Documents and (B) ION Article 9 has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documentsobtained.
Appears in 1 contract
Samples: Indenture (Endo International PLC)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full and discharge of all outstanding Pari Passu Debt and all other Pari Passu Obligations that are outstanding, due and payable at the time all of the Pari Passu Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Pari Passu Documents and the cancellation or termination, cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Pari Passu Documents) of all outstanding letters of credit issued pursuant to any Security Documents or, solely to the extent if any agreed to by the issuer of any outstanding letter of credit issued pursuant to any Security Document, the issuance of a back to back letter of credit in connection with favor of the issuer of any Enforcement Action such outstanding letter of credit in an amount equal to such outstanding letter of credit and issued by a financial institution acceptable to such issuer;
(2) as to any Priority Lien Representative Collateral that is sold, transferred or any Priority Lien Collateral Agent otherwise disposed of by the Issuer or any other exercise of any Priority Lien Representative’s Grantor to a Person that is not (either before or any Priority Lien Collateral Agent’s remedies in respect after such sale, transfer or disposition) the Issuer or a Restricted Subsidiary (as defined under the Indenture) of the Collateral, Issuer in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself a transaction or on behalf of any other circumstance that is permitted by Section 4.12 of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensIndenture, if any, and is permitted by all of the Collateral Agentother Pari Passu Documents, for itself, at the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided, that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or disposition is subject to the lien subordination “Merger, Consolidation or Sale of Assets” provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(3) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect pursuant to such Collateralclause (2) above), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of all Pari Passu Liens on such Collateral has been given by an Act of Required Secured Parties or (B) the Pari Passu Liens securing on such collateral have been automatically released pursuant to the New Second Lien Convertible Notes Pari Passu Documents; provided, that this clause (3) shall not apply to (i) Discharge of Pari Passu Obligations upon payment in full thereof or (ii) sales or dispositions subject to the “Merger, Consolidation or Sale of Assets” provisions of the Indenture;
(4) as to a release of all or substantially all of the Collateral (other than pursuant to clause (1) above), if (A) consent to release of that Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Pari Passu Debt at the time outstanding as provided for in the Note applicable Security Documents and (B) ION the Issuer has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained obtained;
(5) if any Grantor (i) ceases to be a Guarantor (including as a result of being designated as an Unrestricted Subsidiary (as defined under the Indenture) or ceasing to be a Subsidiary) (ii) is sold, transferred or otherwise disposed of to a Person that is not the Issuer or a Restricted Subsidiary (as defined under the Indenture) or (iii) is released from its obligations under each of the Security Documents, then the Liens on such Collateral and the obligations of such Grantor under its Guarantee of the Pari Passu Obligations, shall be automatically, unconditionally and simultaneously released; and
(6) with respect to any Collateral that becomes an Excluded Asset.
(b) The Collateral Trustee agrees for the benefit of the Issuer and the other Grantors that if the Collateral Trustee at any time receives an Officer’s Certificate stating that
(A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Security Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with, then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release is otherwise authorized to the Issuer or other applicable Grantor on or before the later of (x) the date specified in such request for such release and permitted (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Note DocumentsCollateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Issuer or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Pari Passu Debt Default under a Series of Pari Passu Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Secured Parties pursuant to Section 4.1(a)(3), the Collateral Trustee will deliver a copy of such Act of Required Secured Parties to each Authorized Representative.
(d) Each Authorized Representative xxxxxx agrees that within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Authorized Representative will deliver a copy of such notice to each registered holder of the Series of Pari Passu Debt for which it acts as Authorized Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien (a) The Collateral Agent or any other exercise of any Priority Lien RepresentativeTrustee’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of upon the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to released:
(i) in whole, upon (A) payment in full in cash and Discharge of Parity Lien Obligations that are outstanding, due and payable at the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms time all of the Intercreditor AgreementParity Lien Debt is paid in full in cash and discharged, if any Priority (B) termination or expiration of all commitments to extend credit under all Parity Lien Collateral Agent, for itself Documents and (C) the cancellation or on behalf termination or cash collateralization (at the lower of any (1) 105% of the Priority Lien Secured Parties represented by it, releases any aggregate undrawn amount of its Liens on any part outstanding letters of credit and (2) the percentage of the Collateral, or any Priority Lien Representative, aggregate undrawn amount required for itself or on behalf release of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted Liens under the terms of the Priority applicable Parity Lien Documents Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(ii) as to any Collateral of a Grantor or Guarantor that is (A) released as a Grantor or Guarantor, as applicable, under each Parity Lien Document and (B) is not expressly prohibited under obligated (as primary obligor or guarantor) with respect to any other Parity Lien Obligations and so long as the respective release does not violate the terms of any Parity Lien Document which then remains in effect;
(iii) as to any Collateral of the Note Documents Company, any Grantor or any Guarantor that is sold, transferred or otherwise disposed of by the Company, any Grantor or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Restricted Subsidiary of the Company in a transaction or other circumstance that complies with Section 6.04 of the Senior Third Lien Credit Agreement (other than in connection with an Enforcement Action any sale, disposition or other exercise of transaction solely between or among any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case Grantors or any Guarantors and other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the obligation to apply proceeds of such CollateralAsset Sale as provided in such Section), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, ;
(iv) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(v) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(vi) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and satisfaction of any other conditions precedent provided for in the applicable Parity Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained and any conditions precedent in the applicable Parity Lien Documents have been satisfied;
(vii) as to a release of Collateral effected in connection with the enforcement or exercise of rights or remedies by the Collateral Trustee with respect to its Liens in such Collateral, if direction of such enforcement or exercise has been given by an Act of Parity Lien Debtholders; or
(viii) if and to the extent, and in the manner, required by Section 4.01(a) or Section 4.01(b) of the Intercreditor Agreement; or
(ix) if the Liens on the Collateral are released pursuant to a sale of Collateral pursuant to section 363 of the Bankruptcy Code or pursuant to a Plan of Reorganization, provided that the Liens on such Collateral attach to the proceeds of such sale and any proceeds are applied in accordance with this Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if the Collateral Trustee at any time receives:
(i) an Officers’ Certificate and an Opinion of Counsel each stating that (A) the signing Officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Officer, such conditions precedent, if any, have been complied with; and
(ii) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of the items required by this Section 4.1(b), upon written request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release is otherwise authorized to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(vii), the Collateral Trustee shall execute and permitted deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Note DocumentsPriority Lien Collateral Agent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that:
(i) in the case of any release pursuant to Section 4.1(a)(iii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(ii) at any time when a Parity Lien Debt Default has occurred and is continuing, within three Business Days of the receipt by it of any Act of Parity Lien Debtholders, the Collateral Trustee, pursuant to Section 4.1(a)(iv), will deliver a copy of such Act of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(1) in whole (other than with respect to indemnification and other contingent obligations for which no claim has been made), upon Discharge of Parity Lien Obligations;
(2) as to any Collateral of a Guarantor that is (A) released as a Guarantor under each Parity Lien Document and (B) is not obligated (as primary obligor or guarantor) with respect to any other Parity Lien Obligations and so long as the respective release does not violate the terms of the Intercreditor Agreement, if any Parity Lien Document which then remains in connection with effect;
(3) as to any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the CollateralCompany or a Guarantor that is sold, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any Guarantor to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on sale, transfer or disposition) the property Company or assets of such Person then the Liens a Guarantor in a transaction or other circumstance that complies with Section 5.11 of the Collateral Agent with respect Indenture (other than any obligation to the property or assets (but excluding, for the avoidance of doubt, any Liens on the apply proceeds of such property or assetsAsset Disposition (as defined in the Indenture) as provided in such Section) and is permitted by all of the other Parity Lien Documents, at the time of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Article VI of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by, or the Collateral Trustee otherwise receives direction to release such Collateral in, an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company has delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained;
(7) if and to the extent, any Collateral becomes an Excluded Asset (as defined in the Indenture)
(8) and in the manner, required by Section 4.01(a) of the Intercreditor Agreement; and
(9) as ordered pursuant to applicable Legal Requirement under a final and nonappealable order or judgment of a court of competent jurisdiction.
(b) The Collateral Trustee agrees, for the benefit of the Company and the Guarantors that upon request of the Company, the Collateral Trustee will promptly execute (with such acknowledgements and/or notarizations as are required, or are otherwise reasonably requested by the Company) and deliver evidence of any release pursuant to Section 4.1(a), Section 4.4, or Section 4.5 to the Company or the applicable Guarantor; provided that to the extent the Company or any Guarantor requests the Collateral Trustee to take any action to acknowledge or deliver evidence of such release of Collateral in accordance with this Section 4.1(b), the Company will deliver to the Collateral Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that such release of Collateral pursuant to the provisions described in Section 4.1(a), Section 4.4, or Section 4.5, as applicable, does not violate the terms of each applicable Parity Lien Document and that all conditions precedent relating to such release provided for in each applicable Parity Lien Document have been complied with. In determining whether any such release of Collateral is otherwise authorized permitted, the Collateral Trustee is entitled to conclusively rely on such Officer’s Certificate and permitted Opinion of Counsel furnished to it pursuant to the immediately preceding sentence. All actions taken pursuant to the provisions described in this Section 4.1(b) are at the sole cost and expense of the Company and the applicable Guarantor.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to Section 4.1(a)(3), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction, (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release or (C) provide in such release that it is conditional upon, and will be automatically effective upon, the payment of such purchase price having been made; and
(2) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(4), the Note DocumentsCollateral Trustee will deliver a copy of such Act of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee's Liens upon the Collateral will be released as provided in any of the following clauses:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreement, if in connection with applicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to Secured Debt Documents;
(2) until the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of Obligations has occurred and upon notice from the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself as to any Collateral that is sold, transferred or on behalf otherwise disposed of by the Borrower or any other Pledgor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Subsidiary (as defined under the Credit Agreement) of the Borrower in a transaction or other circumstance that complies with Section 6.9 of the Credit Agreement, if any, and is otherwise permitted by the terms of the Credit Agreement, the Hedge Agreement and all of the other Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of;
(3) after the Discharge of Priority Lien Secured Parties releases Obligations has occurred and upon notice from the Parity Lien Representative, as to any Guarantor from its obligations Collateral that is sold, transferred or otherwise disposed of by the Borrower or any other Pledgor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or a Restricted Subsidiary (as defined under its guaranty the Indenture) of the Borrower in a transaction or other circumstance that complies with Section 4.10 of the Indenture, if any, and Section 5(a)(ix) of the Hedge Agreement (as added thereto by the Schedule thereto, dated as of June 30, 2004) to the extent such Section 5(a)(ix) incorporates Section 6.9 of the Credit Agreement and is permitted by all of the other Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Trustee's Liens upon the Collateral will not be released if the sale or disposition is subject to the "Merger, Consolidation or Sale of Assets" provisions of the Indenture or and Section 5(a)(ix) of the Hedge Agreement (as added thereto by the Schedule thereto, dated as of June 30, 2004) to the extent such Section 5(a)(ix) incorporates the provisions of Section 6.9 of the Credit Agreement restricting mergers or the sale of all of its assets;
(4) as to a release of less than all or substantially all of the Collateral, if consent to the release of all Priority Liens on such Collateral has been given by an Act of Required Creditors;
(5) as to a release of all or substantially all of the Collateral, if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officer's Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained; or
(6) as to sales or other dispositions of assets referred to in subsections (b),(d),(f) of Section 6.9 of the Credit Agreement, the Collateral Trustee's Liens upon such Collateral shall be released automatically; provided, that upon request by any holder of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or other applicable Pledgor as so reasonably requested.
(b) The Collateral Trustee and agrees for the benefit of the holders Borrower and the other Pledgors that if the Collateral Trustee at any time receives:
(1) an Officer's Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the New Second Lien Convertible Notes, on such Collateral, Collateral have been complied with and (C) in the obligations opinion of such Guarantor under its guaranty of the New Second Lien Convertible Notesofficer, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreementsuch conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agentrecordable form, in each case if applicable; and
(3) prior to the Discharge of Priority Lien Obligations, the equity interests written confirmation of any Person are foreclosed upon or otherwise disposed of and such each Priority Lien Collateral Agent releases its Lien on the property Representative (or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, at any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, time after the Discharge of Priority Lien Obligations, then each Parity Lien Representative) (such confirmation to be given following receipt of, and based solely on, the LiensOfficer's Certificate described in clause (1) above) that, if anyin its view, of such release is permitted by Section 4.1(a) and the Collateral Agent, for itself or for respective Secured Debt Documents governing the benefit of Secured Obligations the holders of which such Secured Debt Representative represents; then the New Second Lien Convertible NotesCollateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Borrower or other applicable Pledgor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), on if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Borrower or other applicable Pledgor, the Collateral Trustee will either (but excluding, for A) be present at and deliver the avoidance of doubt, any Liens on release at the proceeds closing of such Collateraltransaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Parity Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Creditors pursuant to Section 4.1(a)(4), and the obligations Collateral Trustee will deliver a copy of such Guarantor under its guaranty Act of Required Creditors to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officer's Certificate from the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursBorrower pursuant to Section 4.1(b)(1) it will, to the extent that any Priority Lien Collateral Agentrequired by such Section, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless either provide (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given written confirmation required by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and Section 4.1(b)(3), (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying a written statement that all such consents have been obtained and such release is otherwise authorized and not permitted by Section 4.1(a) or (C) a request for further information from the Note DocumentsBorrower reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within one Business Day of the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(c)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Priority Lien Debt or Series of Parity Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (Belden & Blake Corp /Oh/)
Release of Liens on Collateral. Subject to (a) The Collateral Trustee’s Liens upon the terms of Collateral will be automatically, and without the Intercreditor Agreement, if in connection with need for any Enforcement Action by any Priority Lien Representative consent or any Priority Lien Collateral Agent or any other exercise approval of any Priority Lien Representative’s Secured Party or any Priority Lien the Collateral Agent’s remedies Trustee (except as contemplated by clauses (5) and (6) below), released in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Partiesfollowing circumstances:
(1) in whole, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the upon Discharge of Priority Lien Secured Obligations;
(2) as to any Collateral that is sold, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on (other than by lease or license) by Parent or any other Grantor in a transaction or other circumstance which is not prohibited by, and, to the property or assets extent applicable, in accordance with, all applicable Secured Debt Documents at the time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition or to the extent of such Collateral sold, transferred or otherwise disposed of;
(3) as to any Collateral by sold in a foreclosure or similar transaction or in connection with any Guarantor permitted under other exercise of remedies in accordance with the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), this Agreement and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, other Security Documents;
(4) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event property of a Discharge of the Priority Lien Obligations or Grantor that becomes an Excluded Asset;
(5) as to a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien pursuant to clause (1), (2), (3) or (4) above), if directed by an Act of Required Secured Parties’ foreclosure upon ; and
(6) as to a release of all or substantially all of the Collateral (other exercise of rights and remedies with respect than pursuant to such Collateralclause (1) above), no if consent to release of the Liens on such that Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given by the Secured Debt Representatives representing the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note applicable Secured Debt Documents and such release has become effective in accordance with such consent.
(Bb) ION has delivered an officers’ certificate to A Grantor shall be automatically released from its obligations under this Agreement and the Priority Lien Collateral Agent, the Trustee other Security Documents and the Collateral Agent certifying Trustee’s Liens upon the Collateral of such Grantor and the capital stock or other equity interests of such Grantor shall be automatically released if such Grantor (x) ceases to be a Restricted Subsidiary (as defined in each applicable Secured Debt Document) or (y) becomes an Excluded Subsidiary (as defined in each applicable Secured Debt Document); provided that Parent has elected for such Excluded Subsidiary to be released in accordance with the Indenture.
(c) The Collateral Trustee agrees for the benefit of Parent and the other Grantors that if the Collateral Trustee at any time receives:
(1) an Officer’s Certificate stating that the conditions precedent in this Agreement and all such consents other Secured Debt Documents, if any, relating to the release of the applicable Collateral have been obtained complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) in the case of a release requested pursuant to Section 4.1(a)(5) or Section 4.1(a)(6), the written confirmation of each Secured Debt Representative that consent from the applicable Secured Parties that are required to consent to such release has been obtained; then the Collateral Trustee will promptly (i) execute (with such acknowledgements and/or notarizations as are required), deliver and provide Parent or such Grantor (or its designee or counsel) authorization to file (if applicable) such releases and such other documents (including UCC termination statements, reconveyances and customary pay-off letters) as Parent or such Grantor may reasonably request to evidence and effectuate such release is otherwise authorized to Parent or such Grantor and permitted (ii) take such other actions (including return of any Collateral to Parent or such Grantor) as Parent or such Grantor may reasonably request in connection with such release, in each case, on or prior to the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(c) by the Note DocumentsCollateral Trustee.
(d) The Collateral Trustee hereby agrees that in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of Parent or other applicable Grantor, the Collateral Trustee will deliver the release under customary escrow or other arrangements that permit such contemporaneous payment and delivery of the release.
Appears in 1 contract
Samples: Second Lien Collateral Trust Agreement (Endo International PLC)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically, and without the need for any consent or approval of any Secured Party or the Collateral Trustee (except as contemplated by clause (3) below), released in any of the following circumstances:
(1) in part as to any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances or that becomes Excluded Property;
(2) in part, as to any property that (a) is sold, transferred or otherwise disposed of by the Issuer or any Grantor (other than to the terms Issuer or another Grantor) in a transaction not prohibited by the Indenture, the Private Exchange Notes Indenture and the Security Documents at the time of the Intercreditor Agreementsuch sale, if transfer or disposition or in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of remedies pursuant to the Indenture, the Private Exchange Notes Indenture, this Agreement, the other Security Documents or the First Lien/Second Lien Intercreditor Agreement or (b) is owned or at any Priority Lien Representative’s time acquired by a Grantor that has been released from its Guarantee (as defined in the Indenture or any Priority Lien Collateral Agent’s remedies the Private Exchange Notes Indenture, as applicable) in respect accordance with the Indenture or the Private Exchange Notes Indenture, as applicable, concurrently with the release of such Guarantee (as defined in the CollateralIndenture or the Private Exchange Notes Indenture, as applicable) (including in connection with the designation of a Grantor as an Unrestricted Subsidiary (as defined in the Indenture or the Private Exchange Notes Indenture, as applicable));
(3) in whole or in part, pursuant to an Act of Required Secured Parties and upon delivery of instructions and other documentation, in each case prior to the Discharge extent required by the Security Documents;
(4) as to any asset constituting Collateral, if all other Liens on such asset securing First Priority Obligations (as defined in the First Lien/Second Lien Intercreditor Agreement) and any other Obligations then secured by such asset (including commitments thereunder) are released or will be released simultaneously therewith, other than by reason of the payment under or termination of any such First Priority Obligations (as defined in the First Lien/Second Lien Intercreditor Agreement) and other Obligations, such Priority to the extent in accordance with this Agreement, the other Security Documents and the First Lien/Second Lien Collateral AgentIntercreditor Agreement; and
(5) in whole or in part, for itself or on behalf of any in accordance with the applicable provisions of the Priority Security Documents and the First Lien/Second Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor Intercreditor Agreement.
(b) A Grantor shall be automatically released from its obligations under its guaranty of this Agreement and the Priority Lien Obligations, then the Liens, if any, of other Security Documents and the Collateral Agent, Trustee’s Liens upon the Collateral of such Grantor and the capital stock or other equity interests of such Grantor shall be automatically released if such Grantor (x) ceases to be a Restricted Subsidiary (as defined in each applicable Secured Debt Document) or (y) becomes an Excluded Subsidiary (as defined in each applicable Secured Debt Document); provided that the Issuer has elected for itself, such Excluded Subsidiary to be released in accordance with the First Priority Debt Documents (as defined in the First Lien/Second Lien Intercreditor Agreement) and the Secured Debt Documents.
(c) The Collateral Trustee and agrees for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, Issuer and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, other Grantors that if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to Trustee at any time receives:
(1) an Officer’s Certificate stating that the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien conditions precedent in this Agreement and all other Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the LiensDebt Documents, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent relating to the release of the applicable Collateral have been complied with;
(2) the proposed instrument or instruments releasing such Liens securing Lien as to such property in recordable form, if applicable; and
(3) in the New Second Lien Convertible Notes case of a release requested pursuant to Section 4.1(a)(3), the written confirmation of each Secured Debt Representative that consent from the applicable Secured Parties that are required to consent to such release has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION has delivered an officers’ certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such consents have been obtained and such release is otherwise authorized and permitted by the Note Documents.obtained;
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Samples: Second Lien Collateral Trust Agreement (Geo Group Inc)
Release of Liens on Collateral. Subject to (a) The Priority Liens upon the terms Collateral will be automatically released in each of the Intercreditor Agreement, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the following circumstances:
(i) as to all Collateral, in each case prior to upon the Discharge of Priority Lien Obligations;
(ii) as to any Collateral of the Company or any other Grantor that (A) is sold, transferred or otherwise disposed of by the Company or any other Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Company or any other Grantor in a transaction or other circumstance that is not prohibited by the Senior Credit Agreement and the other Priority Lien Documents or (B) becomes Excluded Collateral;
(iii) as to any Collateral Agentof a Grantor that (A) is released as a Grantor (and Guarantor) under each Priority Lien Document (including as a result of becoming an Excluded Subsidiary) and (B) is not obligated (as primary obligor or guarantor) with respect to any other Priority Lien Obligations and, for itself or on behalf in each case, so long as the respective release does not violate the terms of any Priority Lien Document which then remains in effect;
(iv) as to any other release of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the LiensCollateral, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Priority Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Priority Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained and such release is otherwise authorized and permitted by the Note Documents.obtained; or
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Release of Liens on Collateral. Subject (a) Without limiting any release permitted under the Crossing Lien Intercreditor Agreement, the Collateral Agent’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time) that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged (or the cash collateralization or payment (or other arrangements with respect thereto) of all Hedging Obligations and Bank Product Obligations constituting Secured Obligations on terms satisfactory to each applicable counterparty, and the expiration or termination of all Hedging Agreements the obligations under which would constitute Secured Obligations) and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination, cash collateralization (at the lower of (1) 103% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents or, solely to the extent if any agreed to by the issuer of any outstanding letter of credit issued pursuant to any Secured Debt Document, the issuance of a back to back letter of credit in favor of the issuer of any such outstanding letter of credit in an amount equal to such outstanding letter of credit and issued by a financial institution acceptable to such issuer; or
(2) as to any Collateral (including any rights to use intellectual property assets constituting Collateral) that is sold, transferred or otherwise disposed of (other than pursuant to clauses (3) or (4) below) by any Grantor to a Person that is not (either before or after such sale, transfer or disposition) a Grantor or a Restricted Subsidiary (as defined in the applicable Priority Lien Documents) of a Grantor (except in the case of an IP Reorganization Transaction (as defined in the Indenture), which shall result in a release of the subject Collateral pursuant to this clause (2)) in a transaction or other circumstance that is permitted by all of the Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; or
(3) as to a release of less than all or substantially all of the Collateral (other than pursuant to clause (2) above), if in connection with (A) consent to the release of all Priority Liens (or, at any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to time after the Discharge of Priority Lien Obligations, the Junior Liens) on such Collateral has been given by an Act of Required Secured Parties or (B) the Priority Liens (or, at any time after the Discharge of Priority Lien Obligations, the Junior Liens) on such collateral have been automatically released pursuant to the Priority Lien Documents; provided, that this clause (3) shall not apply to Discharge of Priority Lien Obligations upon payment in full thereof; or
(4) as to a release of all or substantially all of the Collateral Agent(other than pursuant to clause (2) above), if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for itself in the applicable Secured Debt Documents and (B) the Issuers have delivered an Officer’s Certificate to the Collateral Agent certifying that any such necessary consents have been obtained; or
(5) if any Grantor is released from its obligations under each of the Junior Lien Documents, then the Junior Liens on such Collateral and the obligations of such Grantor (if it is also a Guarantor) under its Guarantee of the Junior Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(6) if any Grantor is released from its obligations under each of the Priority Lien Documents, then the Priority Liens on such Collateral and the obligations of such Grantor (if it is also a Guarantor) under its Guarantee of the Priority Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(7) notwithstanding any of the foregoing, if the Collateral Agent is exercising its rights or on behalf remedies with respect to the Collateral under the Priority Lien Security Documents pursuant to an Act of Required Secured Parties, and the Collateral Agent releases any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority Lien ObligationsObligations in connection therewith, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, Junior Liens on such Collateral, Collateral and the obligations of such Guarantor under its guaranty Guarantee of the New Second Junior Lien Convertible NotesObligations, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any the Collateral Agent under the Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior Security Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien the Collateral Agent releases its Priority Lien on the property or assets of such Person then the Junior Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the Priority Liens on such property or assets are released; or
(8) as provided in the Crossing Lien Intercreditor Agreement.
(b) In addition to and without limiting the provisions of Section 4.1(a), the Collateral Agent agrees for the benefit of the Issuers and the other Grantors that if the Collateral Agent at any time receives:
(1) an Officer’s Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Priority officer, such conditions precedent, if any, have been or will, by the applicable release date, be complied with;
(2) the proposed instrument or instruments releasing such Lien Collateral Agent. Subject as to such property in recordable form, if applicable; and
(3) to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented extent required by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraphSection 4.1(a), in each case other than in connection with, or following, prior to the Discharge of Priority Lien Obligations, then the Lienswritten confirmation of each Priority Lien Representative (or, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, at any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until time after the Discharge of Priority Lien Obligations, each Junior Lien Representative) (such confirmation to be given following receipt of, and based solely on, the Officer’s Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the respective Secured Debt Documents governing the Secured Obligations occursthe holders of which such Secured Debt Representative represents; then the Collateral Agent will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Issuers or other applicable Grantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Agent.
(c) The Collateral Agent hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Issuers or other applicable Grantor, the Collateral Agent will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Junior Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Secured Parties pursuant to Section 4.1(a)(3), the Collateral Agent will deliver a copy of such Act of Required Secured Parties to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officer’s Certificate from the Issuers pursuant to Section 4.1(b)(1) it will, to the extent that any Priority Lien Collateral Agentrequired by such Section, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless either provide (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given written confirmation required by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and Section 4.1(b)(3), (B) ION has delivered an officers’ certificate a written statement that such release is not permitted by Section 4.1(a) or (C) a request for further information from the Issuers reasonably necessary to determine whether the Priority Lien Collateral Agentproposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within one Business Day of the Trustee and receipt by it of any notice from the Collateral Agent certifying that all pursuant to Section 4.1(c)(2), such consents have been obtained and Secured Debt Representative will deliver a copy of such release is otherwise authorized and permitted by notice to each registered holder of the Note DocumentsSeries of Priority Lien Debt or Series of Junior Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Agent’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time) that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged (or the cash collateralization or payment (or other arrangements with respect thereto) of all Hedging Obligations and Bank Product Obligations constituting Secured Obligations on terms satisfactory to each applicable counterparty, and the expiration or termination of all Hedging Agreements the obligations under which would constitute Secured Obligations) and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination, cash collateralization (at the lower of (1) 103% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents or, solely to the extent if any agreed to by the issuer of any outstanding letter of credit issued pursuant to any Secured Debt Document, the issuance of a back to back letter of credit in favor of the issuer of any such outstanding letter of credit in an amount equal to such outstanding letter of credit and issued by a financial institution acceptable to such issuer; or
(2) as to any Collateral (including any rights to use intellectual property assets constituting Collateral) that is sold, transferred or otherwise disposed of (other than pursuant to clauses (3) or (4) below) by any Grantor to a Person that is not (either before or after such sale, transfer or disposition) a Grantor or a Restricted Subsidiary (as defined in the applicable Priority Lien Documents) of a Grantor (except in the case of an IP Reorganization Transaction (as defined in the Indenture), which shall result in a release of the subject Collateral pursuant to this clause (2)) in a transaction or other circumstance that is permitted by all of the Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; or
(3) as to a release of less than all or substantially all of the Collateral (other than pursuant to clause (2) above), if in connection with (A) consent to the release of all Priority Liens (or, at any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to time after the Discharge of Priority Lien Obligations, the Junior Liens) on such Collateral has been given by an Act of Required Secured Parties or (B) the Priority Liens (or, at any time after the Discharge of Priority Lien Obligations, the Junior Liens) on such collateral have been automatically released pursuant to the Priority Lien Documents; provided, that this clause (3) shall not apply to Discharge of Priority Lien Obligations upon payment in full thereof; or
(4) as to a release of all or substantially all of the Collateral Agent(other than pursuant to clause (2) above), if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for itself in the applicable Secured Debt Documents and (B) the Issuers have delivered an Officer’s Certificate to the Collateral Agent certifying that any such necessary consents have been obtained; or
(5) if any Grantor is released from its obligations under each of the Junior Lien Documents, then the Junior Liens on such Collateral and the obligations of such Grantor (if it is also a Guarantor) under its Guarantee of the Junior Lien Obligations, shall be automatically, unconditionally and simultaneously released;
(6) if any Grantor is released from its obligations under each of the Priority Lien Documents, then the Priority Liens on such Collateral and the obligations of such Grantor (if it is also a Guarantor) under its Guarantee of the Priority Lien Obligations, shall be automatically, unconditionally and simultaneously released; or
(7) notwithstanding any of the foregoing, if the Collateral Agent is exercising its rights or on behalf remedies with respect to the Collateral under the Priority Lien Security Documents pursuant to an Act of Required Secured Parties, and the Collateral Agent releases any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority Lien ObligationsObligations in connection therewith, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, Junior Liens on such Collateral, Collateral and the obligations of such Guarantor under its guaranty Guarantee of the New Second Junior Lien Convertible NotesObligations, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any the Collateral Agent under the Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior Security Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien the Collateral Agent releases its Priority Lien on the property or assets of such Person then the Junior Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the Priority Liens on such property or assets are released.
(b) In addition to and without limiting the provisions of Section 4.1(a), the Collateral Agent agrees for the benefit of the Issuers and the other Grantors that if the Collateral Agent at any time receives:
(1) an Officer’s Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Priority officer, such conditions precedent, if any, have been or will, by the applicable release date, be complied with;
(2) the proposed instrument or instruments releasing such Lien Collateral Agent. Subject as to such property in recordable form, if applicable; and
(3) to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented extent required by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraphSection 4.1(a), in each case other than in connection with, or following, prior to the Discharge of Priority Lien Obligations, then the Lienswritten confirmation of each Priority Lien Representative (or, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, at any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until time after the Discharge of Priority Lien Obligations, each Junior Lien Representative) (such confirmation to be given following receipt of, and based solely on, the Officer’s Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the respective Secured Debt Documents governing the Secured Obligations occursthe holders of which such Secured Debt Representative represents; then the Collateral Agent will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Issuers or other applicable Grantor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Agent.
(c) The Collateral Agent hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Issuers or other applicable Grantor, the Collateral Agent will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Junior Lien Debt has occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Secured Parties pursuant to Section 4.1(a)(3), the Collateral Agent will deliver a copy of such Act of Required Secured Parties to each Secured Debt Representative.
(d) Each Secured Debt Representative hereby agrees that:
(1) as soon as reasonably practicable after receipt of an Officer’s Certificate from the Issuers pursuant to Section 4.1(b)(1) it will, to the extent that any Priority Lien Collateral Agentrequired by such Section, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless either provide (A) consent to the release of such Liens securing the New Second Lien Convertible Notes has been given written confirmation required by the requisite percentage or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and Section 4.1(b)(3), (B) ION has delivered an officers’ certificate a written statement that such release is not permitted by Section 4.1(a) or (C) a request for further information from the Issuers reasonably necessary to determine whether the Priority Lien Collateral Agentproposed release is permitted by Section 4.1(a) and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and
(2) within one Business Day of the Trustee and receipt by it of any notice from the Collateral Agent certifying that all pursuant to Section 4.1(c)(2), such consents have been obtained and Secured Debt Representative will deliver a copy of such release is otherwise authorized and permitted by notice to each registered holder of the Note DocumentsSeries of Priority Lien Debt or Series of Junior Lien Debt for which it acts as Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens on the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Obligations are paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreement, if in connection with applicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Enforcement Action by Parity Lien Documents;
(2) as to any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excludingincluding, for the avoidance of doubt, any Liens on Capital Stock of any Guarantor and, in the proceeds case of a sale of all of the Capital Stock of a Guarantor, all of such property or Guarantor’s assets) that is sold, transferred or otherwise disposed of by Company or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) Company or a Restricted Subsidiary (as defined under the Indenture) of Company in a transaction or other circumstance that complies with Section 4.10 of the Indenture and is permitted by all of the other Parity Lien Documents, at the time of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or disposition is subject to the lien subordination provisions Section 5.01 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(3) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the all Parity Liens on such Collateral securing has been given by an Act of Required Parity Lien Debtholders;
(4) as to a release of all or substantially all of the New Second Lien Convertible Notes shall be made unless Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note Documents applicable Parity Lien Documents, and (B) ION Company has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained; and
(5) if and to the extent required by the Intercreditor Agreement.
(b) The Collateral Trustee and each Parity Lien Debt Representative agrees for the benefit of Company and the Guarantors that, if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officers have read Article 4 of this Agreement and understand the provisions and the definitions relating hereto, (B) such officers have made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officers, such conditions precedent, if any, have been complied with;
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) an opinion of counsel to the Company to the effect that such release of Collateral is otherwise authorized and permitted by the Note DocumentsIndenture, the Intercreditor Agreement and each other Parity Lien Document; then, to the extent no Parity Lien Debt Representative has delivered a written notice to the Collateral Trustee within two Business Days of receipt by the Collateral Trustee of such Officer’s Certificate and opinion of counsel, objecting to any such release and providing an explanation for the basis of such objection, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to Company or any Guarantors as soon as practicable, but no later than the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of Company or any Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens on the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization (at the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreement, if in connection with applicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Enforcement Action by any Priority Lien Representative Secured Debt Document (including the furnishing of back-up letters of credit or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies the deemed issuance under a new agreement that is not in respect of any Secured Debt and that is not a Secured Debt Document with the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any consent of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations issuing bank of such Guarantor under its guaranty outstanding letters of the New Second Lien Convertible Notescredit);
(2) as to any Collateral that is sold, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of by the Grantors to a Person that is not (either before or after such sale, transfer or disposition) another Grantor in either (a) a foreclosure sale or other transaction approved by an Act of Required Debtholders or (b) a transaction or other circumstance that complies with Section 4.10 of the Indenture and such Priority Lien Collateral Agent releases its Lien on is permitted by all of the property or assets other Secured Debt Documents, at the time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under to the terms extent of the Priority Lien Documents and interest sold, transferred or otherwise disposed of; provided, that the Collateral Trustee’s Liens upon the Collateral will not expressly prohibited under be released if the terms sale or disposition is subject to Section 5.01 of the Note Documents Indenture;
(other 3) as to a release of less than all or substantially all of Priority Liens on such Collateral, if (a) consent to release of that Collateral has been given by an Act of Required Debtholders, (b) such release is in connection with an Enforcement Action a transaction or circumstance that complies with Section 4.10 of the Indenture and is permitted by all of the other Security Documents at the time of such sale, transfer or other exercise of any Priority Lien Representativedisposition, or (c) a Guarantor’s and/or Priority Lien Collateral Agent’s remedies in respect Guarantee is released under Section 11.05 of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral Indenture; and
(but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, 4) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless (A) if consent to the release of such Liens securing the New Second Lien Convertible Notes Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note Documents applicable Secured Debt Documents.
(b) The Collateral Trustee agrees for the benefit of Satmex and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) ION such officer has delivered made such examination or investigation as is necessary to enable him or her to express an officers’ certificate informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the Priority Lien Collateral Agent, the Trustee and release of the Collateral Agent certifying that all such consents have been obtained complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; and
(3) with respect to Section 4.1(a)(1), an Opinion of Counsel that such release is otherwise authorized and permitted by Section 4.1(a)(1); then the Note DocumentsCollateral Trustee will promptly execute (with such acknowledgements and/or notarizations as are required) and deliver such release to Satmex or the applicable Guarantor on the date specified in such request for such release; provided that the Collateral Trustee shall have received the items required by this Section 4.1(b) on or prior to such specified date.
(c) The Collateral Trustee hereby agrees that in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of Satmex or the applicable Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release.
Appears in 1 contract
Samples: Collateral Trust Agreement (Satelites Mexicanos Sa De Cv)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(i) in whole, upon (A) payment in full in cash of (1) all outstanding Parity Lien Debt and (2) all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash (other than contingent indemnity obligations for which no claim has been made), (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents, (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents, if and (D) as to any Series of Parity Lien Debt outstanding under Secured Hedge Agreements, the collateralization thereof with Eligible Collateral (as defined in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise the applicable Swap Contract) at the lower of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect (1) 105% of the Collateral, in each case prior to applicable Secured Hedge Counterparty’s Exposure and (2) the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations percentage of such Guarantor Secured Hedge Counterparty’s Exposure required for release of Liens under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection applicable Parity Lien Documents;
(ii) as to any Collateral of an Obligor that is (A) released as an Obligor under each Parity Lien Document and (B) is not obligated (as primary obligor or guarantor) with respect to any Enforcement Action or other exercise of rights Parity Lien Obligations and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to so long as the Discharge of Priority Lien Obligations, respective release does not violate the equity interests terms of any Person are foreclosed upon Parity Lien Document which then remains in effect;
(iii) as to any Collateral of any Obligor that is sold, transferred or otherwise disposed of and by any Obligor to a Person that is not (either before or after such Priority sale, transfer or disposition) the Parent or a Restricted Subsidiary (as defined in the Indenture) of the Parent in a transaction or other circumstance that is permitted by all of the Parity Lien Collateral Agent releases its Lien on Documents, at the property or assets time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Article 5 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(iv) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(v) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(vi) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Parent has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained; or
(vii) as to any properties or assets that become “Posted Credit Support” (as defined in any Secured Hedge Agreement), Working Capital Priority Collateral or Excluded Property.
(b) Without limiting the foregoing, each party hereto agrees that if the Collateral Trustee at any time receives:
(i) an Officers’ Certificate (in each case which the Collateral Trustee shall be entitled to rely upon) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and (D) such release is otherwise authorized and permitted of Collateral did not violate the terms of any applicable Parity Lien Document; and
(ii) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Note DocumentsCollateral Trustee of the items required by this Section 4.1(b), upon request of the Parent, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the applicable Obligor.
(c) The Collateral Trustee hereby agrees that:
(i) in the case of any release pursuant to Section 4.1(a)(iii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Parent or other applicable Obligor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(ii) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(iv), the Collateral Trustee will deliver a copy of such Act of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (Calumet Specialty Products Partners, L.P.)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released in any of the following circumstances:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations (other than Secured Cash Management Obligations and any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time) that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged; (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination, cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents or, solely to the extent if any agreed to by the issuer of any outstanding letter of credit issued pursuant to any Secured Debt Document, the issuance of a back to back letter of credit in favor of the issuer of any such outstanding letter of credit in an amount equal to such outstanding letter of credit and issued by a financial institution acceptable to such issuer; and (C) with respect to any Secured Hedging Obligations, (x) the cash collateralization of all such Secured Hedging Obligations on terms satisfactory to each applicable Hedge Bank or the making of such other arrangements satisfactory to the applicable Hedge Bank or (y) the expiration and termination of all Secured Hedging Agreements evidencing such Secured Hedging Obligations and payment in full in cash of all Secured Hedging Agreements with respect thereto;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by the Borrower or any other Grantor to a Person that is not (either before or after such sale, transfer or disposition) the Borrower or any other Grantor in a transaction or other circumstance that is permitted by all of the other Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided, that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is to a Person who is required to succeed to, and is substituted for, the Borrower or a Grantor under Article V of the Indenture (or any analogous provision in any other Secured Debt Document);
(3) as to a release of less than all or substantially all of the Collateral (other than pursuant to clause (2) above), if directed by (x) the Controlling Representative or (y) an Act of Required Secured Parties, in connection with each case, accompanied by an Officer’s Certificate to the effect that the release was permitted by each applicable Secured Debt Documents; provided that this clause (3) shall not apply to (i) a Discharge of Priority Lien Obligations upon payment in full thereof or (ii) sales or dispositions subject to Section 5.01 of the Indenture (or any Enforcement Action analogous provision in any other Secured Debt Document);
(4) as to a release of less than all or substantially all of the Collateral securing the Priority Lien Debt (other than pursuant to clause (2) above), (i) if directed by any (x) the Controlling Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise (y) an Act of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the CollateralRequired Secured Parties, in each case prior case, accompanied by an Officer’s Certificate to the effect that the release was permitted by the Priority Lien Documents and (ii) upon the release of the Priority Liens on such Collateral, then the Parity Liens on such Collateral shall be automatically, unconditionally and simultaneously released; provided, that this clause (4) shall not apply to (A) Discharge of Priority Lien Obligations upon payment in full thereof or (B) sales or dispositions subject to Section 5.01 of the Indenture (or any analogous provision in any other Secured Debt Document);
(5) as to a release of all or substantially all of the Collateral (other than pursuant to clause (1) above), if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each applicable Series of Secured Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) the Borrower has delivered an Officer’s Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained;
(i) if any Guarantor is released from its obligations under each of the Priority Lien Documents (including as a result of being designated an Unrestricted Subsidiary or otherwise ceasing to be a Subsidiary) pursuant to the Priority Lien Documents, then the Priority Liens on the Collateral owned by such Guarantor and the obligations of such Guarantor under its Guarantee of the Priority Lien Obligations, shall be automatically, unconditionally and simultaneously released and (ii) if any Guarantor is released from its obligations under each of the Parity Lien Documents (including as a result of being designated an Unrestricted Subsidiary or otherwise ceasing to be a Subsidiary), then the Parity Liens on such Collateral and the obligations of such Guarantor under its Guarantee of the Parity Lien Obligations, shall be automatically, unconditionally and simultaneously released; provided that this clause (6) shall not apply to a Discharge of Priority Lien Obligations upon payment in full thereof;
(7) as to any Series of Secured Debt to the extent that any asset is or becomes released or excluded from the Collateral Agentunder the Secured Debt Documents of such Series of Secured Debt;
(8) notwithstanding any of the foregoing, for itself if the Collateral Trustee is exercising its rights or on behalf remedies with respect to the Collateral under the Priority Lien Security Documents pursuant to an Act of Required Secured Parties, and the Collateral Trustee releases any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor is released from its obligations under its guaranty Guarantee of the Priority Lien ObligationsObligations in connection therewith, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, Parity Liens on such Collateral, Collateral and the obligations of such Guarantor under its guaranty Guarantee of the New Second Parity Lien Convertible NotesObligations, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if If in connection with any Enforcement Action or other exercise of rights and remedies by any the Collateral Trustee under the Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior Security Documents pursuant to the Discharge an Act of Priority Lien ObligationsRequired Secured Parties, the equity interests of any Person are foreclosed upon or otherwise disposed of and such the Collateral Trustee releases Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Parity Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be concurrently and automatically released to the same extent as the Priority Liens on such property or assets are released.
(b) The Collateral Trustee agrees for the benefit of the Borrower and the other Grantors that if the Collateral Trustee at any time receives:
(1) an Officer’s Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Priority officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable, or such other proposed acknowledgment of such release of Lien as to such property; and
(3) in the case of clause (3) or (4) of Section 4.1(a), the other direction required by such clause; then the Collateral Agent. Subject Trustee will execute (with such acknowledgements and/or notarizations as are requested) and deliver such release or acknowledgment to the Borrower or other applicable Grantor on or before the date specified in such request.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any such sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under require the terms payment of the Priority Lien Documents and not expressly prohibited under purchase price to be contemporaneous with the terms delivery of the Note Documents (other than in connection with an Enforcement Action applicable release, then, at the written request of and at the expense of the Borrower or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or followingapplicable Grantor, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless Trustee will either (A) consent to be present at and deliver the release at the closing of such Liens securing the New Second Lien Convertible Notes has been given by the requisite percentage transaction or number of the holders of New Second Lien Convertible Notes at the time outstanding as provided for in the Note Documents and (B) ION deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Parity Lien Debt has delivered an officers’ certificate occurred and is continuing, within one Business Day of the receipt by it of any Act of Required Secured Parties pursuant to the Priority Lien Collateral AgentSection 4.1(a)(3), the Collateral Trustee and the Collateral Agent certifying that all will deliver a copy of such consents have been obtained and such release is otherwise authorized and permitted by the Note DocumentsAct of Required Secured Parties to each Secured Debt Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(1) in whole, upon (A) payment in full in cash and discharge of all outstanding Parity Lien Debt and all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash and discharged, (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents and (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreement, if in connection applicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents;
(2) as to any Collateral of a Guarantor that is (A) released as a Guarantor under each Parity Lien Document and (B) is not obligated (as primary obligor or guarantor) with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or respect to any other exercise of any Priority Parity Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of Obligations and so long as the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to respective release does not violate the terms of any Parity Lien Document which then remains in effect;
(3) as to any Collateral of the Intercreditor AgreementCompany or a Guarantor that is sold, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any Guarantor to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on sale, transfer or disposition) the property Company or assets of such Person then a Restricted Subsidiary (as defined in the Liens Indenture) of the Collateral Agent Company in a transaction or other circumstance that complies with respect Section 4.7 of the Indenture (other than the obligation to the property or assets (but excluding, for the avoidance of doubt, any Liens on the apply proceeds of such property or assetsAsset Sale (as defined in the Indenture) as provided in such Section) and is permitted by all of the other Parity Lien Documents, at the time of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Section 5.1 of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained; or
(7) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release is otherwise authorized and permitted by of the Note Documents.Collateral have been complied with and
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be automatically released:
(i) in whole, upon (A) payment in full in cash of (1) all outstanding Parity Lien Debt and (2) all other Parity Lien Obligations that are outstanding, due and payable at the time all of the Parity Lien Debt is paid in full in cash (other than contingent indemnity obligations for which no claim has been made), (B) termination or expiration of all commitments to extend credit under all Parity Lien Documents, (C) the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Parity Lien Documents) of all outstanding letters of credit issued pursuant to any Parity Lien Documents, if and (D) as to any Series of Parity Lien Debt outstanding under Secured Hedge Agreements, the collateralization thereof with Eligible Collateral (as defined in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise the applicable Swap Contract) at the lower of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect (1) 105% of the Collateral, in each case prior to applicable Secured Hedge Counterparty’s Exposure and (2) the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations percentage of such Guarantor Secured Hedge Counterparty’s Exposure required for release of Liens under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection applicable Parity Lien Documents;
(ii) as to any Collateral of an Obligor that is (A) released as an Obligor under each Parity Lien Document and (B) is not obligated (as primary obligor or guarantor) with respect to any Enforcement Action or other exercise of rights Parity Lien Obligations and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to so long as the Discharge of Priority Lien Obligations, respective release does not violate the equity interests terms of any Person are foreclosed upon Parity Lien Document which then remains in effect;
(iii) as to any Collateral of any Obligor that is sold, transferred or otherwise disposed of and by any Obligor to a Person that is not (either before or after such Priority sale, transfer or disposition) the Parent or a Restricted Subsidiary of the Parent in a transaction or other circumstance that is permitted by all of the Parity Lien Collateral Agent releases its Lien on Documents, at the property or assets time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent of the interest sold, transferred or otherwise disposed of; provided that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and Trustee’s Liens upon the Parity Lien Secured Parties, shall Collateral will not be granted a Lien on any such Collateral, released if the sale or other disposition is subject to the lien subordination provisions Article 5 of the Intercreditor Agreement, and 2024 Indenture (or the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, equivalent provision in any other Indenture);
(iv) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by an Act of Parity Lien Debtholders;
(v) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(vi) as to a release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Parity Lien Documents and (B) ION the Parent has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained; or
(vii) as to any properties or assets that become “Posted Credit Support” (as defined in any Secured Hedge Agreement), Working Capital Priority Collateral or Excluded Property.
(b) Without limiting the foregoing, each party hereto agrees that if the Collateral Trustee at any time receives:
(i) an Officers’ Certificate (in each case which the Collateral Trustee shall be entitled to rely upon) stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and (D) such release is otherwise authorized and permitted of Collateral did not violate the terms of any applicable Parity Lien Document; and
(ii) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Note DocumentsCollateral Trustee of the items required by this Section 4.1(b), upon request of the Parent, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release to the applicable Obligor.
(c) The Collateral Trustee hereby agrees that:
(i) in the case of any release pursuant to Section 4.1(a)(iii), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Parent or other applicable Obligor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(ii) at any time when a Parity Lien Debt Default has occurred and is continuing, within one Business Day of the receipt by it of any Act of Parity Lien Debtholders pursuant to Section 4.1(a)(iv), the Collateral Trustee will deliver a copy of such Act of Parity Lien Debtholders to each Parity Lien Representative.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full or discharge of all outstanding Pari Passu Lien Debt and all other Pari Passu Lien Obligations that are outstanding, due and payable at the time all of the Pari Passu Lien Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Pari Passu Lien Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Pari Passu Lien Documents) of all outstanding letters of credit issued pursuant to any Pari Passu Lien Documents;
(2) as to any Collateral that is sold, transferred or otherwise disposed of by the Company or any Subsidiary Guarantor (including indirectly, by way of a sale or other disposition of Capital Stock of that Subsidiary Guarantor) to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Subsidiary Guarantor in a transaction or other circumstance that is not prohibited by either the Notes Indenture or by the terms of any other applicable Pari Passu Lien Documents at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is subject to the terms of the Intercreditor AgreementNotes Indenture (except, if in connection with as to any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occursSubsidiary Guarantor, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties such transaction results in the release of the Subsidiary Guarantor’s Subsidiary Guarantee pursuant to clauses (i1) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii2) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of Section 10.5 of the Intercreditor Agreement, Notes Indenture);
(3) as to any accounts receivable and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, related assets transferred or purportedly transferred in connection with a Permitted Sales-Type Lease Transaction;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the all Pari Passu Liens on such Collateral securing has been given by an Act of Required Debtholders;
(5) as to a release of all or substantially all of the New Second Lien Convertible Notes shall be made unless Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Pari Passu Lien Convertible Notes Debt at the time outstanding as provided for in the Note applicable Pari Passu Lien Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained; and
(6) as required pursuant to the ABL Intercreditor Agreement or the Senior-Junior Intercreditor Agreement (if any); and, in each case, upon request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release is otherwise authorized and permitted to the Company in the form provided by the Note Company; provided, however, to the extent the Company requests the Collateral Trustee to deliver evidence of the release of Collateral in accordance with this Section 4.1(a), the Company will deliver to the Collateral Trustee an Officers’ Certificate and Opinion of Counsel to the effect that no release of Collateral pursuant to this Section 4.1(a) violated the terms of any Pari Passu Lien Document.
(b) Other than with respect to any release pursuant to clause (4) or (5) of Section 4.1(a), the Collateral Trustee agrees for the benefit of the Company and the Subsidiary Guarantors that if the Collateral Trustee at any time receives:
(1) an Opinion of Counsel and an Officers’ Certificate stating that (A) the signing Officer or provider of such Opinion of Counsel has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) they have made such examination or investigation as is necessary to enable them to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Pari Passu Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Officer or provider of such Opinion of Counsel, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable, then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Company or Subsidiary Guarantors on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Collateral Trustee.
(c) The Collateral Trustee hereby agrees that in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or Subsidiary Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release. In addition, the Liens granted by any Subsidiary Guarantor pursuant to the Security Documents will be released upon any Subsidiary Guarantor ceasing to guarantee the Pari Passu Lien Obligations pursuant to the Pari Passu Lien Documents then in effect.
Appears in 1 contract
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released:
(1) in whole, upon (A) payment in full and discharge of all outstanding Secured Debt and all other Secured Obligations that are outstanding, due and payable at the time all of the Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Secured Debt Documents and the cancellation or termination or cash collateralization in an account maintained by the Collateral Trustee (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the Intercreditor Agreementapplicable Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Secured Debt Documents, if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representativeprovided the Company has delivered an Officer’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior Certificate to the Discharge of Priority Lien Obligations, Collateral Trustee certifying that the conditions described in this Section 4.1(a)(1) have been met and that such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part release of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to does not violate the terms of the Intercreditor AgreementSecured Debt Documents or the Security Documents;
(2) as to any Collateral that is sold, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of and by the Company or any Guarantor (including indirectly, by way of a sale or other disposition of Capital Stock of that Guarantor) to a Person that is not (either before or after such Priority Lien Collateral Agent releases its Lien on sale, transfer or disposition) the property Company or assets of such Person then the Liens of the Collateral Agent with respect to the property a Guarantor in a transaction or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to other circumstance that is not prohibited by the terms of any applicable Secured Debt Documents, at the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf time of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any such sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under or to the terms extent of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (interest sold, transferred or otherwise disposed of, provided, that, other than in connection with an Enforcement Action Ordinary Course Activity, the Company has delivered an Officer’s Certificate to the Collateral Trustee certifying that any such sale, transfer or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect disposition does not violate the terms of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral applicable Secured Debt Documents;
(but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, 3) as to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, as the case may be. In the event of a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of the Liens on such Collateral securing the New Second Lien Convertible Notes shall be made unless if (A) consent to the release of all Parity Liens (or, at any time after the Discharge of Parity Lien Obligations, consent to the release of all Junior Liens) on such Liens securing the New Second Lien Convertible Notes Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note Parity Lien Documents (or, at any time after the Discharge of Parity Lien Obligations, the requisite percentage or number of holders of each Series of Junior Lien Debt at the time outstanding as provided for in the Junior Lien Documents) and (B) the Company has delivered an Officer’s Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained and that such release of the Collateral does not violate the terms of the Secured Debt Documents or the Security Documents; and
(4) as to a release of all or substantially all of the Collateral, if (A) consent to the release of that Collateral has been given by the requisite percentage or number of holders of each Series of Secured Debt at the time outstanding as provided for in the applicable Secured Debt Documents and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained and that any such release does not violate the terms of the Secured Debt Documents or the Security Documents.
(b) The Collateral Trustee agrees for the benefit of the Company and the Guarantors that if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate stating that (A) the signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is otherwise authorized necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and permitted all other Secured Debt Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such officer, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Company or Guarantors on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(b) by the Note DocumentsCollateral Trustee.
(c) The Collateral Trustee hereby agrees that:
(1) in the case of any release pursuant to clause (2) of Section 4.1(a), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or Guarantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and
(2) within one Business Day of the receipt by it of any Officer’s Certificate in support of a release of Collateral pursuant to Section 4.1(a) or 4.1(b), the Collateral Trustee will deliver a copy of such Officer’s Certificate to each Junior Lien Representative.
Appears in 1 contract
Samples: Collateral Trust Agreement (Leap Wireless International Inc)
Release of Liens on Collateral. Subject (a) The Collateral Trustee’s Liens upon the Collateral will be released and terminated:
(1) in whole, automatically, upon the occurrence of the Secured Debt Termination Date, with notice to the Collateral Trustee, however failure to deliver such notice shall not affect such release;
(2) upon the written request of the Issuers and the respective Grantor to the Collateral Trustee, as to any Collateral of a Grantor (other than the Issuers) that (x) is released as a Grantor under each Secured Debt Document and (y) is not obligated (as primary obligor, guarantor or pledgor) with respect to any other Secured Obligations at such time and so long as the respective release does not violate the terms of any Secured Debt Document which then remains in effect;
(3) as to any Collateral that is released, sold, transferred or otherwise disposed of by the Issuers or any other Grantor to a Person that is not (either before or after such release, sale, transfer or disposition) the Company or a Restricted Subsidiary (as defined in the Existing Indenture) thereof in a transaction or other circumstance that complies with the terms of the Intercreditor Agreement, if Existing Indenture (for so long as the Existing Indenture is in connection with any Enforcement Action effect) and is not prohibited by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the Discharge of Priority Lien Obligations, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien other Secured PartiesDebt Documents, releases any of its Liens on any part of at the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations time of such Guarantor under its guaranty of the New Second Lien Convertible Notesrelease, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon or otherwise disposed of and such Priority Lien Collateral Agent releases its Lien on the property or assets of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition of any Collateral by any Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have released any Lien on Collateral or any Guarantor from its obligation under its guaranty and any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to the lien subordination provisions of the Intercreditor Agreementinterest released, and the Trusteesold, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, transferred or otherwise disposed of;
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect pursuant to such Collateralclause (1), no (2) or (3) above) at any time prior to the Discharge of Secured Obligations if written consent to the release of the all Liens on such Collateral securing has been given by an Act of Required Secured Debtholders; and
(5) as to a release of all or substantially all of the New Second Lien Convertible Notes shall be made unless Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second Lien Convertible Notes each Series of Secured Debt at the time outstanding as provided for in the Note applicable Secured Debt Documents and (B) ION has the Issuers have delivered an officers’ certificate Officer’s Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all any such necessary consents have been obtained obtained.
(b) At any time that any Grantor desires that the Collateral Trustee take any action to acknowledge or give effect to any release of Collateral pursuant to the provisions of Section 4.1(a), the Issuers and the applicable Grantor shall, on behalf of itself or the respective Grantor, deliver to the Collateral Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the release of the respective Collateral is permitted pursuant to
Section 4.1 (a)(1), (2), (3), (4) or (5), as the case may be, and that all conditions precedent relating to such release is otherwise authorized provided for in the Secured Debt Documents have been complied. In acknowledging or effecting any release, the Collateral Trustee shall be entitled to conclusively rely on such Officer’s Certificate and permitted by Opinion of Counsel furnished to it pursuant to the Note Documentsimmediately preceding sentence. All actions taken pursuant to this Section 4.1 shall be at the sole cost and expense of the Issuers and the respective Grantor.
Appears in 1 contract
Samples: Collateral Trust and Intercreditor Agreement (Par Pacific Holdings, Inc.)
Release of Liens on Collateral. Subject to (a) The Parity Liens upon the terms Collateral will be automatically released in each of the Intercreditor Agreementfollowing circumstances:
(1) in whole (other than with respect to indemnification and other contingent obligations not then due and payable or for which no claim has been made), if in connection with any Enforcement Action by any Priority Lien Representative or any Priority Lien Collateral Agent or any other exercise of any Priority Lien Representative’s or any Priority Lien Collateral Agent’s remedies in respect of the Collateral, in each case prior to the upon Discharge of Priority Parity Lien Obligations;
(2) as to any Collateral that is sold, such Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties, releases any of its Liens on any part of the Collateral or such Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself, the Trustee and for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral, and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Subject to the terms of the Intercreditor Agreement, if in connection with any Enforcement Action or other exercise of rights and remedies by any Priority Lien Representative or any Priority Lien Collateral Agent, in each case prior to the Discharge of Priority Lien Obligations, the equity interests of any Person are foreclosed upon transferred or otherwise disposed of by any Grantor or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) a Grantor or a Guarantor in a transaction or other circumstance that complies with the “Asset Sale” provisions of the Second Lien Indenture and such Priority is permitted by the other Parity Lien Collateral Agent releases its Lien on Documents at the property or assets time of such Person then the Liens of the Collateral Agent with respect to the property or assets (but excluding, for the avoidance of doubt, any Liens on the proceeds of such property or assets) of such Person will be automatically released to the same extent as the Liens of such Priority Lien Collateral Agent. Subject to the terms of the Intercreditor Agreement, if any Priority Lien Collateral Agent, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any of its Liens on any part of the Collateral, or any Priority Lien Representative, for itself or on behalf of any of the Priority Lien Secured Parties represented by it, releases any Guarantor from its obligations under its guaranty of the Priority Lien Obligations, in connection with any sale, lease, exchange, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided that the Parity Liens upon the Collateral will not be released if the sale or disposition is subject to the “Merger, Consolidation or Sale of Assets” provisions of the Second Lien Indenture or any similar provision in any other Parity Lien Documents;
(3) as to any Collateral by any of a Guarantor permitted under the terms of the Priority Lien Documents and not expressly prohibited under the terms of the Note Documents (other than in connection with an Enforcement Action or other exercise of any Priority Lien Representative’s and/or Priority Lien Collateral Agent’s remedies in respect of the Collateral, which shall be governed by the previous paragraph), in each case other than in connection with, or following, the Discharge of Priority Lien Obligations, then the Liens, if any, of the Collateral Agent, for itself or for the benefit of the holders of the New Second Lien Convertible Notes, on such Collateral (but excluding, for the avoidance of doubt, any Liens on the proceeds of such Collateral), and the obligations of such Guarantor under its guaranty of the New Second Lien Convertible Notes, shall be automatically, unconditionally and simultaneously released. Until the Discharge of Priority Lien Obligations occurs, to the extent that any Priority Lien Collateral Agent, any Priority Lien Representative or Priority Lien Secured Parties (i) have such Guarantor is released any Lien on Collateral or any Guarantor from its obligation under its guaranty and guarantee of any such Liens or guaranty are later reinstated or (ii) obtain any new liens or additional guarantees from any Guarantor, then the Collateral Agent, for itself and the Parity Lien Secured Parties, shall be granted a Lien on any such Collateral, subject to Debt in accordance with the lien subordination provisions of the Intercreditor Agreement, and the Trustee, for itself and for the holders of the New Second Lien Convertible Notes, shall be granted an additional guaranty, Indenture and all other applicable Parity Lien Documents,
(4) as the case may be. In the event of to a Discharge of the Priority Lien Obligations or a voluntary release of Liens securing the Priority Lien Obligations by the Priority Lien Secured Parties on less than all or substantially all of the Collateral (other than when such release occurs in connection with Collateral, if consent to the Priority Lien Secured Parties’ foreclosure upon or other exercise of rights and remedies with respect to such Collateral), no release of all Parity Liens on such Collateral has been given by, or the Collateral Trustee otherwise receives written direction to release such Collateral in, an Act of Parity Lien Debtholders;
(5) in whole, if the Liens on such Collateral securing have been released in accordance with the New Second terms of each Series of Parity Lien Convertible Notes shall be made unless Debt;
(6) as to any other release of all or substantially all of the Collateral, if (A) consent to the release of such Liens securing the New Second Lien Convertible Notes that Collateral has been given by the requisite percentage or number of the holders of New Second each Series of Parity Lien Convertible Notes Debt at the time outstanding as provided for in the Note Documents applicable Parity Lien Documents, and (B) ION the Company has delivered an officersOfficers’ certificate Certificate to the Priority Lien Collateral Agent, the Trustee and the Collateral Agent certifying that all such necessary consents have been obtained obtained;
(7) if and to the extent any Collateral becomes an Excluded Asset (as defined in the Second Lien Indenture);
(8) if and to the extent, and in the manner, required by Section 4.01(a) of the Intercreditor Agreement; and
(9) as ordered pursuant to applicable law under a final and nonappealable order or judgment of a court of competent jurisdiction.
(b) The Collateral Trustee agrees for the benefit of the Company and the other Grantors that, if the Collateral Trustee at any time receives:
(1) an Officers’ Certificate and an Opinion of Counsel each stating that (A) the signing Officer (in the case of the Company) or Person (in the case of an Opinion of Counsel) has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such Officer or Person, as applicable, has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement, the Intercreditor Agreement and all other Parity Lien Documents, if any, relating to the release of the Collateral have been complied with and (C) in the opinion of such Officer or such Person, as applicable, such conditions precedent, if any, have been complied with; and
(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable; then, promptly following receipt by the Collateral Trustee of the items required by this Section 4.1(b), upon written request of the Company, the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver evidence of such release is otherwise authorized to the Company or other applicable Grantor; provided that, in the case of a release of Liens under Section 4.1(a)(8), the Collateral Trustee shall execute and permitted deliver such proposed instruments releasing its Liens contemporaneously with the execution and delivery of such similar instruments by the Note DocumentsSecond Lien Collateral Agent in accordance with the terms of the Intercreditor Agreement.
(c) The Collateral Trustee hereby agrees that in the case of any release pursuant to Section 4.1(a)(2), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, subject to the Intercreditor Agreement and at the written request of and at the expense of the Company or other applicable Grantor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release.
Appears in 1 contract
Samples: Collateral Trust Agreement (Vanguard Natural Resources, LLC)
