Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents. (b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following: (i) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01; (ii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable; (iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property; (iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture; (v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and (vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon. (c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture: (i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents; (ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent); (iii) all documents required by this Indenture and the Collateral Documents; and (iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral. (d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 2 contracts
Samples: Indenture (Cliffs Natural Resources Inc.), Indenture (Cliffs Natural Resources Inc.)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets Collateral shall automaticallybe released with respect to the Securities and the Subsidiary Guarantees, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Indenture;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.1(b) hereof;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) Subsidiary Guarantors in a transaction permitted by Section 3.02 3.7 and by the Collateral Documents, Documents (to the extent of the interest sold or disposed of, ) or otherwise not prohibited permitted by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.023.7(a) or for any other expenditures not prohibited by the Indenture; (C) that is upon any release, sale or disposition (other than in connection with a cancellation or termination of the ABL Collateral, Credit Agreement or Term Loan Agreement without a replacement thereof) of such Collateral pursuant to the terms of the ABL Intercreditor Credit Agreement or Term Loan Credit Agreement resulting in the release of the Lien on such Collateral securing the ABL Credit Agreement or Term Loan Agreement; or (D) that is Notes Collateralotherwise in accordance with, pursuant to and as expressly provided for under, the terms of Indenture or the Notes Intercreditor Agreements or (E) that at any time becomes Excluded PropertyAgreement;
(iv5) in whole as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with this Indenture;; and
(v6) with the consent of Holders holders of seventy-five percent (75% %) in aggregate principal amount of the Notes then outstanding Securities (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of Securities); provided, that, in the case of any release in whole pursuant to clauses, clauses (i1) and through (ii3) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the NotesSecurities, the Guarantees and Subsidiary Guarantees, the Collateral Documents and the Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent required herein, the Company and each Subsidiary Guarantor will shall furnish to the Notes Collateral AgentTrustee, prior to each proposed release of such Collateral pursuant to the Collateral Documents and this the Indenture:
, an Officers’ Certificate and an Opinion of Counsel as required under Section 13.4 (i) an Officer’s Certificate requesting such release, including a statement release and (ii) to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with.
(iic) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the its Subsidiary Guarantors, as the case may be, the released CollateralCollateral in accordance with the directions of the Company, and (b) upon written request by the Company or the applicable its Subsidiary Guarantor, as the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateralcase may be.
(d) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. Any person may rely on this (d) in delivering The Trustee and each of the Holders acknowledge that a certificate requesting release of any collateralCollateral or a Lien in accordance with the terms of the Collateral Documents (including the Intercreditor Agreement) and of this Section 10 will not be deemed for any purpose to be in contravention of the terms of this Indenture. Any Person that is required to deliver an Officers’ Certificate or Opinion of Counsel pursuant to Section 314(d) of the Trust Indenture Act shall be entitled to rely upon the foregoing as a basis for delivery of such certificate or opinion.
(e) Notwithstanding any provision to the contrary herein, as and when requested by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver Uniform Commercial Code financing statement amendments or releases (which shall be prepared by the Company) solely to the extent necessary to delete Excluded Collateral from the description of assets in any previously filed financing statements. If requested in writing by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Company) and to take such other action as the Company may request to evidence or confirm that Excluded Collateral described in the immediately preceding sentence has been released from the Liens of each of the Collateral Agreements. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Trustee.
Appears in 2 contracts
Samples: Indenture (NBC Acquisition Corp), Indenture (New Nebraska Book Company, Inc.)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingSecurities:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest (including Additional Interest, if any), premium, if any, and Additional Amounts, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.018.1(a) hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.1(b) hereof;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by 3.5 or the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; 3.5(a), (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; nature described in clause (3), clause (4), clause (8), clause (9), clause (10) or clause (11) of the proviso in the definition of “Asset Disposition” and is subject to a disposition as therein provided, (D) that is Notes Collateralconstitute Excess Collateral Proceeds that remain unexpended after the conclusion of a Collateral Disposition Offer conducted in accordance with this Indenture, pursuant to the terms of the Notes Intercreditor Agreements or (E) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor Subsidiary of the Company that is has been released from its Subsidiary Guarantee in accordance with this Indenture;, concurrently with the release thereof, (F) that is Capital Stock of a Subsidiary of the Company to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 or Rule 3-10 of Regulation S-X under the Securities Act, due to the fact that such Subsidiary’s Capital Stock secures the Securities, to file separate financial statements with the SEC (or any other governmental agency) or (G) otherwise in accordance with, and as expressly provided for under, this Indenture, including, without limitation, Article X; and
(v5) with the consent of Holders of 75% in aggregate or more of the outstanding principal amount of the Notes then outstanding Securities, unless such release involves all or substantially all of the Collateral, in accordance which case such release will require the consent of each Holder affected thereby (including, without limitation, consents obtained in connection with Section 9.02a tender offer or exchange offer for, or purchase of, Securities); provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) abovethis Section 11.6(a), all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the NotesSecurities, the Guarantees and Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Subsidiary Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii4) all documents required by TIA §314(d), this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement; and
(iv5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and Indenture, the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureIntercreditor Agreement. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Subsidiary Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Subsidiary Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 2 contracts
Samples: Indenture (Cellu Tissue Holdings, Inc.), Indenture (Cellu Tissue - CityForest LLC)
Release of Liens on the Collateral. (a) Subject to The Collateral Trustee’s Liens upon the Intercreditor Agreements, Collateral will no longer secure the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of or other Obligations outstanding under this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at but not necessarily any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guaranteesother Priority Lien Debt), and the Collateral Documents under any one or more right of the following circumstances, Holders to the benefits and such proceeds of the Collateral Trustee’s Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein or in other than notice of such release to the applicable Collateral Document)Trustee, but the failure to deliver such notice shall not affect such release) terminate and be released, terminated and discharged upon any of the followingdischarged:
(i1) in wholewhole or in part, upon 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 which has become (and only to the extent it continues to constitute) Excluded Property;
(2) in whole upon:
(A) satisfaction and discharge of this Indenture as set forth in Section 12.01;Article 11; or
(iiB) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle 8;
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by either of the Company Issuers or any of its Subsidiaries Guarantor (other than to the Company Issuers or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; (B) that is cash Security Documents at the time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Eb) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor that is has been released from its Note Guarantee in accordance with this Indenture, concurrently with the release of such Note Guarantee or (c) solely with respect to the release of a Note Guarantee under clauses (2), (3) or (4) of Section 10.05, the Capital Stock of the released Guarantor, concurrently with the release of such Note Guarantee;
(v4) in whole or in part, as applicable, with the consent of Holders of 75(i) 66-2/3% or more in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) Notes if releasing all or substantially all Collateral and (ii) above50% or more in aggregate principal amount of then outstanding Notes if releasing less than all or substantially all Collateral (in each case, all amounts owing to including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in part, in accordance with the Trustee and applicable provisions of the Notes Collateral Agent under this Indenture, the Notes, the Guarantees Security Documents and the Collateral Documents have been paid; andTrust Agreement;
(vi6) to the extent any lease is Collateral, upon the incurrence by the Company or any Guarantor termination of any Permitted Lien on any such lease;
(7) with respect to Collateral that is a purchase money LienCapital Stock, upon the dissolution or is a pre-existing Lien on property acquired after liquidation of the Issue Date where the terms issuer of such Lien prohibit other Liens thereonCapital Stock that is not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof.
(cb) For all circumstances Each of the releases described in clauses (1) through (7) of Section 11.06(b13.09(a) (other than with respect clause (4)) shall be effected by the Collateral Trustee without the consent of the Holders or any action on the part of the Trustee. To the extent required by this Indenture for the release of properties that constitute Collateral pursuant to clauses clause (iii3)(a) and (vi) thereof)above, the Company and each Guarantor Issuers will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of such Collateral pursuant to the Collateral Security Documents and this Indenture:
(i) , an Officer’s Officers’ Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture transaction and the Collateral Documents and such release is authorized or permitted by disposition of the Collateral proceeds thereof will comply with the terms of the Security Documents and this Indenture. , as applicable.
(c) Upon compliance by either of the Company Issuers or the Guarantorsany Guarantor, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent Trustee shall promptly cause to be released and reconveyed to the Company, Issuers or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 2 contracts
Samples: Indenture (CSI Compressco LP), Indenture (CSI Compressco LP)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Notes and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes and all other obligations thereunder;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01the Indenture;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.03 hereof;
(iii4) in whole or in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 4.10 and by the Collateral Documents, Documents (to the extent of the interest sold or disposed of, ) or otherwise not prohibited permitted by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from otherwise in accordance with, and as expressly provided for under, this Indenture or the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded PropertyAgreements;
(iv5) in whole as to all Collateral that is owned by a Guarantor that is released from its Note Guarantee in accordance with this Indenture;; and
(v6) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Notes); provided, that, in the case of any release in whole pursuant to clauses, clauses (i1) and through (ii3) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money LienNote Guarantees, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:the Intercreditor Agreements have been paid or otherwise provided for to the reasonable satisfaction of the Trustee.
(ib) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, clauses (a) and (b) of this Section 11.09, the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, Company or the Guarantors, as the case may be, the released CollateralCollateral and, and if necessary, the Collateral Agent shall, at the Company’s expense, cause to be filed such documents or instruments (b) upon written request as prepared by the Company or and provided to the applicable Guarantor, Collateral Agent) as shall be necessary to provide for the Notes release by the Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreements or upon the termination of this Indenture. Any person Notwithstanding any provision to the contrary herein, as and when requested in writing by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver Uniform Commercial Code or similar financing statement amendments or releases (or amendments or releases to other perfection documents or registrations) (which shall be prepared by the Company) solely to the extent necessary to delete any such released Collateral from the description of assets in any previously filed financing statements or other perfection documents or registrations. If requested in writing by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Company) and to take such other action as the Company may rely on this request to evidence or confirm that released Collateral described in the immediately preceding sentence has been released from the Liens of each of the Collateral Documents. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Trustee.
(d) Notwithstanding any provision to the contrary herein, as and when requested by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver Uniform Commercial Code financing statement amendments or releases (or amendments or releases to other perfection documents or registrations) (which shall be prepared by the Company) solely to the extent necessary to delete Excluded Assets from the description of assets in delivering a certificate requesting release any previously filed financing statements or other perfection documents or registrations. If requested by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Company) and to take such other action as the Company may request to evidence or confirm that Excluded Assets described in the immediately preceding sentence has been released from the Liens of any collateraleach of the Collateral Documents. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Trustee.
Appears in 2 contracts
Samples: Indenture (Angiotech America, Inc.), Indenture (Angiotech Pharmaceuticals Inc)
Release of Liens on the Collateral. (a) Subject to The Collateral Trustee’s Liens upon the Intercreditor Agreements, Collateral will no longer secure the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of or other Obligations outstanding under this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at but not necessarily any time Pari Passu Notes Lien Indebtedness or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the GuaranteesPari Passu Lien Hedge Agreements), and the Collateral Documents under any one or more right of the following circumstances, Holders to the benefits and such proceeds of the Collateral Trustee’s Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein or in other than notice of such release to the applicable Collateral Document)Trustee, but the failure to deliver such notice shall not affect such release) terminate and be released, terminated and discharged upon any of the followingdischarged:
(i1) in wholewhole or in part, upon 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 which has become (and only to the extent it continues to constitute) Excluded Assets;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Section 12.01;Article 12; or
(iib) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle 8;
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by either of the Company Issuers or any of its Subsidiaries Guarantor (other than to the Company or a Guarantoranother Restricted Subsidiary) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; (B) that is cash Security Documents at the time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Eb) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor that is has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee (including in connection with the designation of a Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(v4) in whole or in part, as applicable, with the consent of Holders of 7566-2/3% or more in aggregate principal amount of the Notes then outstanding (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement and the other Security Documents;
(6) to the extent that any lease is Collateral, upon termination of such lease;
(7) with respect to Collateral that is Capital Stock, upon the dissolution or liquidation of the issuer of such Capital Stock that is not prohibited by this Indenture; or
(8) as described in Section 9.02, provided, 9.02 hereof; provided that, in the case of any release in whole pursuant to clausesclauses (1), (i2) and (ii4) above, all amounts owing to the Trustee and the Notes Collateral Agent Trustee under this Indenture, the Notes, the Guarantees Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the Collateral other Security Documents have been paid; and.
(vib) upon To the incurrence extent a proposed release of Collateral is not automatic and requires any action by the Company Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)Collateral, the Company Issuers and each Guarantor such Guarantor, as applicable, will furnish to the Notes Trustee and the Collateral AgentTrustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Collateral Security Documents and this Indenture:
(i1) an Officer’s Certificate requesting such releaserelease or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, including a statement in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Documents Trust and Intercreditor Agreement) to such release of Collateral have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the such release of Collateral is permitted by this Indenture Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Documents;Trust and Intercreditor Agreement); and
(ii3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Notes Trustee and Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Trustee and Collateral AgentTrustee);.
(iiic) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent Trustee shall promptly promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the CompanyIssuers, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 2 contracts
Samples: Indenture (Par Pacific Holdings, Inc.), Indenture (Par Pacific Holdings, Inc.)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time with respect to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest (including Special Interest, if any) and premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Article XII hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.2 hereof;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by Holdings, the Company or any of its the Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 3.5 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.023.5(a) hereof; (C) that is with respect to ABL Collateral, upon any release, sale or disposition (other than in connection with a cancellation or termination of the ABL Credit Facility) of any ABL Collateral pursuant to the terms of the ABL Intercreditor AgreementCredit Facility resulting in the release of the Lien on such Collateral securing the ABL Credit Facility; (D) that is Notes Collateral, Capital Stock of a Subsidiary of the Company to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the terms of Securities Act, due to the Notes Intercreditor Agreements fact that such Subsidiary’s Capital Stock secures the Notes, to file separate financial statements with the SEC (or any other governmental agency); or (E) that at any time becomes Excluded Propertyotherwise in accordance with, and as expressly provided for under, this Indenture or the Intercreditor Agreement;
(iv5) that is owned by a Guarantor that is released from its Note Guarantee in accordance with this Indenture;
(v6) in connection with a Permitted Restructuring in compliance with Section 4.2; and
(7) with the consent of Holders of 7566 2/3% in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Notes), provided, that, in the case of any release in whole pursuant to clauses, clauses (i1) and through (ii5) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and Note Guarantees, the Collateral Documents and the Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of First Priority Collateral (and, to the extent required by the TIA, prior to the proposed release of any other Collateral) pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii3) all documents required by TIA §314(d), this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement; and
(iv4) an Opinion of Counsel to the effect that such accompanying documents constitute all documents extent required by TIA §314(d), this Indenture and Indenture, the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureIntercreditor Agreement. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. Any person may rely on this .
(d) in delivering If the Company or a certificate requesting Guarantor at any time after such release of Liens on Collateral notifies the Collateral Agent in writing that any collateraladditional action by the Collateral Agent, or the delivery of any additional instrument executed by the Collateral Agent, is required to release, discharge or terminate security interests granted to the Collateral Agent with respect to the property subject to the release or any notice, filing or registration with respect thereto, the Collateral Agent will, at the requestor’s expense and as reasonably requested by the requestor in such notice, take such action or execute and deliver (and if requested acknowledge) such other instruments effecting or confirming the release, discharge or termination of any security interest or other Lien described above or any notice, filing or registration of any security interest or other Lien described above; provided, however, the Collateral Agent shall not be liable for any such actions to so release or discharge or terminate any security interest in accordance with subsection (d).
Appears in 2 contracts
Samples: Indenture (Edgen Group Inc.), Indenture (Edgen Murray II, L.P.)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or Collateral securing the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes of such series;
(2) in whole upon:
(A) a Legal Defeasance or Covenant Defeasance of such series of Notes as set forth in Article VIII hereof; or
(B) the satisfaction and discharge of this Indenture with respect to such series of Notes as set forth in Section 12.01;11.01; or
(iiC) in whole, upon the occurrence of a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;Suspension Date with respect to such series of Notes (provided that the applicable Investment Grade Ratings give effect to the proposed release of the Collateral).
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company any Issuer or any of its Subsidiaries Guarantor (other than to the Company any Issuer or a another Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; (B) that is cash Security Documents at the time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Eb) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor that is 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);
(v4) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding whole or in part, as applicable, in accordance with Section 9.02the provisions in Article IX;
(5) in part, providedin accordance with the applicable provisions of the Security Documents and the Intercreditor Agreements (including, without limitation, any property or asset of an Issuer or a Guarantor that becomes and Excluded Asset); or
(6) in whole or in part, as applicable, as to all or any part of the Collateral that has been taken by eminent domain, condemnation or other similar circumstances, provided that, in the case of any release in whole pursuant to clausesclauses (1), (i2) and (ii4) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees Guarantees, the Security Documents and the Collateral Documents Intercreditor Agreements with respect to such series of Notes have been paid; and
paid in full. Notwithstanding clause (vi2)(C) above, upon the incurrence occurrence of a Reinstatement Date with respect to such series of Notes, the Issuers and the Guarantors shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Collateral Agent for its benefit and the benefit of the Holders of such series and the Trustee valid, perfected, security interests (subject to Permitted Liens) in the Collateral (which in accordance with the Intercreditor Agreements shall be first-priority Liens, in the case of any Notes-TLB Priority Collateral, and second-priority Liens, in the case of any ABL Priority Collateral) within 60 days after such Reinstatement Date or, with respect to any Material Real Property Asset, with 270 days after such Reinstatement Date, in each case or such later date as may be agreed to by the Company Term Loan Collateral Agent or any Guarantor of any Permitted Lien on any the ABL Collateral that is a purchase money LienAgent, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonas applicable.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) To the extent a proposed release of Collateral is not automatic and (vi) thereof)requires action by the Trustee or the Collateral Agent, the Company Issuers and each Guarantor will furnish to the Notes Trustee and the Collateral Agent, prior to each proposed release of such Collateral pursuant to the Collateral Security Documents and this Indenture:
(i) , an Officer’s Certificate requesting such release, including a statement to the effect and an Opinion of Counsel that all conditions precedent provided for in this Indenture and the Collateral Security Documents relating to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with.
(iic) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed (at the expense of the Issuers or the Guarantors) to the Company, Issuers or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 2 contracts
Samples: Indenture (NGL Energy Partners LP), Indenture (NGL Energy Partners LP)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or Collateral securing the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in wholewhole or in part, upon 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;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Section 12.01;Article XII hereof; or
(iib) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle VIII hereof;
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company Issuers or any of its Subsidiaries Subsidiary Guarantor (other than to the Company Issuers or a Guarantoranother Restricted Subsidiary) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; (B) that is cash Security Documents at the time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Eb) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Subsidiary Guarantor that is has been released from its Note Guarantee in accordance with this Indenture, concurrently with the release of such Note Guarantee (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary);
(v4) in whole or in part, as applicable, with the consent of Holders of 7566 2/3% in aggregate principal amount of the Notes then outstanding (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes); or
(5) in part, in accordance with Section 9.02the applicable provisions of the Security Documents, provided, the Collateral Trust and Intercreditor Agreement and the ABL Intercreditor Agreement; provided that, in the case of any release in whole pursuant to clausesclauses (1), (i2) and (ii4) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees Note Guarantees, the Security Documents, the Collateral Trust and Intercreditor Agreement and the Collateral Documents ABL Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) To the extent a proposed release of Collateral is not automatic and (vi) thereof)requires the action by the Trustee or the Collateral Agent, the Company Issuers and each Subsidiary Guarantor will furnish to the Notes Trustee and the Collateral Agent, prior to each proposed release of such Collateral pursuant to the Collateral Security Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release;
(2) an Officers’ Certificate and an Opinion of Counsel, including a statement in compliance with Sections 13.4 and 13.5 to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Trustee and Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Trustee and Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv4) an Opinion upon qualification of Counsel the Indenture under the TIA subject to and only to the effect that such accompanying extent applicable pursuant to Section 11.2(d), any other documents constitute all documents or instruments required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. to be delivered pursuant to TIA §314(d).
(c) Upon compliance by the Company Issuers or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuers or such Subsidiary Guarantor to the Notes Trustee and Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuers, or the Subsidiary Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released CollateralXxxxxxxxxx.
(dx) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Security Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Security Documents if and to the extent the Collateral is released pursuant to this Indenture or and the Collateral Security Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time with respect to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest (including Special Interest, if any) and premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Article XII hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.2 hereof;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 3.5 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.023.5(a) hereof; (C) that is with respect to ABL Collateral, upon any release, sale or disposition (other than in connection with a cancellation or termination of the ABL Credit Facility) of any ABL Collateral pursuant to the terms of the ABL Intercreditor AgreementCredit Facility resulting in the release of the Lien on such Collateral securing the ABL Credit Facility; (D) that is Notes Collateral, Capital Stock of a Subsidiary of the Company to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the terms of Securities Act, due to the Notes Intercreditor Agreements fact that such Subsidiary’s Capital Stock secures the Notes, to file separate financial statements with the SEC (or any other governmental agency); or (E) that at any time becomes Excluded Propertyotherwise in accordance with, and as expressly provided for under, this Indenture or the Intercreditor Agreement;
(iv5) that is owned by a Guarantor that is released from its Note Guarantee in accordance with this Indenture;; and
(v6) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Notes), provided, that, in the case of any release in whole pursuant to clauses, clauses (i1) and through (ii6) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and Note Guarantees, the Collateral Documents and the Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of First Priority Collateral (and, to the extent required by the TIA, prior to the proposed release of any other Collateral) pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii3) all documents required by TIA §314(d), this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement; and
(iv4) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and Indenture, the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureIntercreditor Agreement. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Easton-Bell Sports, Inc.)
Release of Liens on the Collateral. (a) Subject to The Collateral Trustee’s Liens upon the Intercreditor Agreements, Collateral will no longer secure the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of or other Obligations outstanding under this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at but may still secure any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guaranteesother Cash Flow Obligations), and the Collateral Documents under any one or more right of the following circumstances, Holders to the benefits and such proceeds of the Collateral Trustee’s Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein or in other than notice of such release to the applicable Collateral Document)Trustee, but the failure to deliver such notice shall not affect such release) terminate and be released, terminated and discharged upon any of the followingdischarged:
(ia) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Article 12;
(iib) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle 8;
(iiic) upon payment in partfull in cash and discharge of all Notes outstanding hereunder and all other Notes Obligations that are outstanding, due and payable hereunder and the other Notes Documents at the time the Notes are paid in full in cash and discharged (other than contingent indemnity obligations for which no claim has been made);
(d) as to any property constituting Collateral (A) of the Company or a Guarantor that is sold sold, transferred or otherwise disposed of by the Company or any of its Subsidiaries Guarantor to a Person that is not (other than to either before or after such sale, transfer or disposition) the Company or a Guarantor) Guarantor in a transaction or other circumstance that does not violate Section 4.10 (other than the obligation to apply proceeds of such Asset Sale as provided in such provision) and is permitted by Section 3.02 and (or not prohibited) by the Collateral Notes Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold sold, transferred or otherwise disposed of, or otherwise not prohibited by this Indenture and ; provided that the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from Trustee’s Liens upon the Collateral Account for will not be released if the sale or disposition is subject to the Section 5.01;
(e) in whole or in part, with the consent of the Holders of the requisite percentage of Notes in accordance with Article 9;
(f) with respect to the assets of any one or more purposes permitted by Section 3.02; (C) Guarantor, at the time that such Guarantor is ABL Collateral, released from its Guarantee pursuant to Section 11.05;
(g) if and to the terms extent required by the provisions of the Collateral Trust Agreement or the provisions of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(ivh) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the any Collateral is released becomes an Excluded Asset; or
(i) as ordered pursuant to this Indenture applicable law under a final and nonappealable order or the Collateral Documents or upon the termination judgment of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release court of any collateralcompetent jurisdiction.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time with respect to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole or in part, as applicable, as to all or any portion of property subject to such Liens that has been taken by eminent domain, condemnation or similar circumstance
(2) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes;
(3) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Article XII hereof;
(ii4) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicablerespectively, hereof;
(iii5) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company Company, Parent or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 3.05 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.023.05(a) hereof; (C) that is with respect to ABL Collateral, upon any release, sale or disposition (other than in connection with a cancellation or termination of the ABL Credit Facilities) of any ABL Collateral pursuant to the terms of the ABL Intercreditor AgreementCredit Facilities resulting in the release of the Lien on such Collateral securing the ABL Credit Facilities; (D) that is Notes Collateral, Capital Stock of a Subsidiary of the Company to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the terms of Securities Act, due to the Notes Intercreditor Agreements fact that such Subsidiary’s Capital Stock secures the Notes, to file separate financial statements with the SEC (or any other governmental agency); or (E) that at any time becomes Excluded Propertyotherwise in accordance with, and as expressly provided for under, this Indenture or the Intercreditor Agreements;
(iv6) that is owned by a Guarantor that is released from its Note Guarantee in accordance with this Indenture;
(v7) if the property subject to any such Lien becomes Excluded Property; and
(8) with the consent of Holders of 7566 2/3% in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Notes), provided, that, in the case of any release in whole pursuant to clauses, clauses (i1) and through (ii5) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and Note Guarantees, the Collateral Documents and the Intercreditor Agreements have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of First Priority Collateral (and, to the extent required by the TIA, prior to the proposed release of any other Collateral) pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii3) all documents required by TIA §314(d), this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreements; and
(iv4) an Opinion of Counsel to the effect that such accompanying documents constitute all documents extent required by TIA §314(d), this Indenture and Indenture, the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureIntercreditor Agreements. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral. Without limiting the generality of the foregoing, and (b) upon written request certain no-action letters issued by the Company or SEC have permitted an indenture qualified under the applicable Guarantor, TIA to contain provisions permitting the Notes Collateral Agent will file, or authorize release of collateral from Liens under such indenture in the filing ordinary course of appropriate termination statements or the company’s business without requiring the company to provide certificates and other documents to terminate the security interest in the released Collateralunder TIA §314(d).
(dc) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreements or upon the termination of this Indenture. Any person may rely on this .
(d) in delivering If the Company or a certificate requesting Guarantor at any time after such release of Liens on Collateral notifies the Collateral Agent in writing that any collateraladditional action by the Collateral Agent, or the delivery of any additional instrument executed by the Collateral Agent, is required to release, discharge or terminate security interests granted to the Collateral Agent with respect to the property subject to the release or any notice, filing or registration with respect thereto, the Collateral Agent will, at the requestor’s expense and as reasonably requested by the requestor in such notice, take such action or execute and deliver (and if requested acknowledge) such other instruments as provided to it effecting or confirming the release, discharge or termination of any security interest or other Lien described above or any notice, filing or registration of any security interest or other Lien described above; provided, however, the Collateral Agent shall not be liable for any such actions to so release or discharge or terminate any security interest in accordance with subsection (d).
Appears in 1 contract
Samples: Indenture (EM Holdings LLC)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens automatically and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be unconditionally released, terminated and discharged upon any of the following:
(i) in whole, upon payment in full of all of the Second Lien Obligations;
(ii) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article VIII;
(iiiii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Propertyunder Article VIII;
(iv) that is owned by a Guarantor that is released from its Guarantee as to any asset constituting Collateral, in accordance with with, and as expressly provided for under, the Second Lien Collateral Documents and this Indenture;; and
(v) in whole or in part, with the consent of Holders of 75at least 662/3% in aggregate principal amount of the Notes then outstanding (including consents obtained in accordance connection with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company a tender offer or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lienexchange offer for, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonpurchase of, Notes), as provided under Section 9.2.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company The Issuer and each Guarantor will furnish to the Trustee and the Secured Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Sections 11.3(a)(i) through (v) or pursuant to the Second Lien Collateral Documents and this IndentureDocuments:
(i) a written request of the Issuer signed by an Officer (a “Security Document Order”) requesting such release;
(ii) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Second Lien Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(iii) solely in the case of a release described in Section 11.3(a)(i), (ii), (iii) and (v), an Opinion of Counsel stating that all conditions precedent in the Indenture, the Second Lien Collateral Documents and the Intercreditor Agreement relating to such release have been complied with; and
(iv) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Trustee or the Secured Notes Collateral Agent);.
(iiic) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture upon delivery by the Company Issuer or such Guarantor to the Notes Collateral Agent of Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or shall direct the Secured Notes Collateral Agent shall to promptly cause to be released and reconveyed to the Company, Issuer or the Guarantorsrelevant Guarantor, as the case may be, the released Collateral, without recourse, representation or warranty of any kind, and (b) upon written request take all other actions reasonably requested by the Company or Issuer in connection therewith, at the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released CollateralIssuer’s expense.
(d) The Notwithstanding anything in Sections 11.3(a) through (c) to the contrary, each Holder hereby (i) agrees that with respect to the Liens on any Collateral referenced in Section 11.3(a)(iv), such Liens shall be automatically released at the time of a Disposition of such Collateral to the extent not prohibited by Section 4.5 and the Second Lien Collateral Documents, and (ii) irrevocably authorizes Secured Notes Collateral Agent to execute and deliver all documentation reasonably requested by the Issuer to effect the release of any such Liens granted to or held by the Secured Notes Collateral Agent under any Second Lien Document. For the avoidance of doubt, the foregoing authorization does not impact any right of the Secured Notes Collateral Agent to receive any applicable document contemplated by this Section 11.3 or otherwise in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed prior to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralsuch documentation.
Appears in 1 contract
Samples: Indenture (Ch2m Hill Companies LTD)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingSecurities:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.018.1(a) hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.1(b) hereof;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by 3.5 of this Indenture or the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.023.5(a); (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; nature described in clause (4), clause (10) or clause (11) of the proviso in the definition of "Asset Disposition," and is subject to a disposition as therein provided, (D) that is Notes Collateralconstitute Excess Collateral Proceeds that remain unexpended after the conclusion of a Collateral Disposition Offer conducted in accordance with the Indenture, pursuant to the terms of the Notes Intercreditor Agreements or (E) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor Subsidiary of the Company that is has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release thereof, or (F) otherwise in accordance with Article II or Article X;
(v5) in part, as to any Intercompany Note Payments applied in accordance with Section 3.1, 3.5 or 11.5(a); and
(6) with the consent of Holders of 75% each Holder affected thereby (including, without limitation, consents obtained in aggregate principal amount of the Notes then outstanding in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Securities); provided, that, in the case of any release in whole pursuant to clauses, this subsection (i) and (ii) abovea), all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees Indenture and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Guarantor Subsidiary will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:the Indenture (other than payments received from the Intercompany Note and applied in accordance with Section 11.5(a)):
(i1) an Officer’s Officers' Certificate requesting such release, including a statement ;
(2) an Officers' Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this the Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii4) all documents required by this Indenture and TIA Section314(d), the Collateral DocumentsDocuments and this Indenture; and
(iv5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by TIA Section314(d), the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this the Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Imco Recycling Inc)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or Collateral securing the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes;
(2) in whole upon:
(A) a Legal Defeasance or Covenant Defeasance as set forth in Article VIII hereof; or
(B) the satisfaction and discharge of this Indenture as set forth in Section 12.01;11.01; or
(iiC) in whole, upon the occurrence of a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;Suspension Date (provided that the applicable Investment Grade Ratings give effect to the proposed release of the Collateral).
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company any Issuer or any of its Subsidiaries Guarantor (other than to the Company any Issuer or a another Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; (B) that is cash Security Documents at the time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Eb) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor that is 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);
(v4) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding whole or in part, as applicable, in accordance with Section 9.02the provisions in Article IX;
(5) in part, providedin accordance with the applicable provisions of the Security Documents and the ABL Intercreditor Agreement; or
(6) in whole or in part, as applicable, as to all or any part of the Collateral that has been taken by eminent domain, condemnation or other similar circumstances, provided that, in the case of any release in whole pursuant to clausesclauses (1), (i2) and (ii4) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees Guarantees, the Security Documents and the Collateral Documents ABL Intercreditor Agreement have been paid; and
paid in full. Notwithstanding clause (vi2)(C) above, upon the incurrence by occurrence of a Reinstatement Date, the Company or any Guarantor Issuers and the Guarantors shall use commercially reasonable efforts to take all actions reasonably necessary to provide to the Collateral Agent for its benefit and the benefit of the Holders and the Trustee valid, perfected, security interests (subject to Permitted Liens) in the Collateral (which in accordance with the ABL Intercreditor Agreement shall be first-priority Liens, in the case of any Permitted Lien on Notes Priority Collateral, and second-priority Liens, in the case of any Collateral that is a purchase money LienABL Priority Collateral) within 60 days after such Reinstatement Date or, or is a pre-existing Lien on property acquired with respect to any Material Real Property Asset, with 120 days after the Issue Date where the terms of such Lien prohibit other Liens thereonReinstatement Date.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) To the extent a proposed release of Collateral is not automatic and (vi) thereof)requires action by the Trustee or the Collateral Agent, the Company Issuers and each Guarantor will furnish to the Notes Trustee and the Collateral Agent, prior to each proposed release of such Collateral pursuant to the Collateral Security Documents and this Indenture:
(i) , an Officer’s Certificate requesting such release, including a statement to the effect and an Opinion of Counsel that all conditions precedent provided for in this Indenture and the Collateral Security Documents relating to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with.
(iic) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed (at the expense of the Issuers or the Guarantors) to the Company, Issuers or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (NGL Energy Partners LP)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingObligations:
(ia) in whole, upon satisfaction and discharge payment in full of this Indenture as set forth in Section 12.01the Obligations;
(ii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iiib) in part, as to any property constituting Collateral (Ai) that is sold or otherwise disposed of by the Company Borrower or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 6.04 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture Agreement and the Collateral Documents; (Bii) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account Accounts for any one or more purposes permitted by subsection (a) of Section 3.026.04 or for any other expenditures not prohibited by this Agreement; (Ciii) that is with respect to ABL Collateral, upon any release, sale or disposition (other than in connection with a cancellation or termination of the ABL Credit Facility) of any ABL Collateral pursuant to the terms of the ABL Intercreditor AgreementCredit Facility resulting in the release of the Lien on such Collateral securing the ABL Credit Facility; or (D) that is Notes Collateralotherwise in accordance with, pursuant to the terms of the Notes Intercreditor Agreements and as expressly provided for under, this Agreement or (E) that at any time becomes Excluded PropertyCollateral Document;
(ivc) that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with this Indenture;Agreement; and
(vd) with the consent of Holders Lenders of 75% sixty six and two-thirds percent (66- 2/3%) in aggregate principal amount of the Loans, (e) in whole if the holders of the Senior Secured Notes then outstanding in accordance with Section 9.02, agree to release the Liens covering all of the Collateral; provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) abovethis Section 9.09(a), all amounts owing to the Trustee and the Notes Collateral Administrative Agent under this Indenture, the Notes, the Guarantees Agreement and the Collateral other Loan Documents in its capacity as such have been paid; and
(vi) upon . For the incurrence by the Company release of real properties that have a fair market value of $10,000,000 or any Guarantor of any Permitted Lien on any Collateral more and that is a purchase money Lien, or is a preconstitute Non-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)ABL Collateral, the Company Borrower and each Subsidiary Guarantor will furnish to the Notes Collateral Administrative Agent, upon request, prior to each proposed release of such Non-ABL Collateral pursuant to the Collateral Documents and this Indenture:
Agreement an Officers’ Certificate (i) an Officer’s Certificate requesting such release, including a statement release and (ii) to the effect that all conditions precedent provided for in this Indenture Agreement and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenturewith. Upon compliance by the Company Borrower or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to Administrative Agent shall direct the Notes Term Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyBorrower, or the its Subsidiary Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Non-ABL Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens Notes and security interests created by the Guarantees, as applicable:
(1) to enable the Issuer or its Restricted Subsidiaries to consummate the sale, transfer or other disposition of such property or assets to the extent not prohibited under Section 4.07;
(2) the release of Excess Proceeds or Collateral Documents at any time Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or from time to time a Collateral Asset Sale Offer conducted in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed the case of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with respect to the Notes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(v4) pursuant to Section 9.02(g), with the consent of the Holders of at least 75% in of the aggregate principal amount of the Notes then outstanding in accordance with and affected thereby;
(5) pursuant to Section 9.02, provided, that, 4.15(c); provided that the Liens on the Collateral securing the Notes and the Notes Obligations will be reinstated upon any Reinstatement Date pursuant to Section 4.15(d);
(6) a release of assets permitted not to be included in the case Collateral pursuant clauses (v) and (vi) of the first proviso to Section 2 of the Security Agreement in connection with a Qualified Receivables Transaction (including any release in whole Receivables Financing) permitted under this Indenture; or
(7) pursuant to clauses, Article 9.
(b) [Reserved].
(c) The Liens on the Collateral securing the Notes and the Guarantees also will be released upon (i) payment in full of the principal of, together with accrued and (ii) aboveunpaid interest on, all amounts owing to the Trustee and the Notes Collateral Agent and all other Obligations under this Indenture, the Notes, the Guarantees and the Collateral Security Documents have been paid; and
that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid or (viii) upon a defeasance under this Indenture pursuant to Article 8 or discharge of the incurrence by Issuer’s and the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonGuarantors’ Obligations under this Indenture in accordance with this Indenture.
(cd) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company The Issuer and each applicable Guarantor will furnish to the Notes Collateral AgentAgent (with a copy to the Trustee), prior to each proposed release of Collateral pursuant to Section 11.05(a)(1) through (7), Section 11.05(c) or pursuant to the Collateral Documents and this IndentureSecurity Documents:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with; and
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentAgent or the Trustee);.
(iiie) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer or the Guarantorsapplicable Guarantor, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)11.05(d), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, Issuer or the GuarantorsGuarantor, as the case may be, the released Collateral, and (b) upon written request take all other actions reasonably requested by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest Issuer in the released Collateralconnection therewith.
(df) The release of any Collateral If the Liens securing the Senior Credit Facility Obligations are released in accordance connection with the terms repayment (including cash collateralization of this Indenture letters of credit) of the Senior Credit Facility Obligations in full and termination of the commitments thereunder, the Liens on the Collateral securing the Notes and the Collateral Documents shall Notes Obligations will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and released, except to the extent the Collateral or any portion thereof was disposed of in order to repay the Senior Credit Facility Obligations secured by the Collateral. From and after any such time when all the Liens securing the First Lien Obligations other than the Notes and the Notes Obligations are released and the Liens on the Collateral securing the Notes remain in existence, if the Issuer or any Guarantor acquires any property or asset constituting Collateral, it shall grant a first-priority perfected security interest (subject to Permitted Liens) upon such property as security for the Notes as required under Section 11.04.
(g) To the extent the Trustee is released pursuant required to execute or direct the Collateral Agent to execute any release, discharge or termination under this Indenture, including without limitation under this Section 11.05 or under Section 10.06, prior thereto the Trustee shall have received an Officers’ Certificate and an Opinion of Counsel that all conditions precedent to such a release in this Indenture or and the Collateral Security Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralhave been complied with.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release The Liens on the Collateral from the security interests created by under the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent automatically and without the need for any further action by any Person (except as provided herein or in be released with respect to the applicable Collateral Document), be released, terminated and discharged upon any of the followingNotes:
(i1) 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;
(2) in whole, upon upon:
(A) satisfaction and discharge of this Indenture as set forth in under Section 12.01;; or
(iiB) in whole, upon a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.02 or Section 8.03, as applicabledescribed under Article 8;
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company or any of its Subsidiaries Guarantor (other than to the Company or a another Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; (B) that is cash Documents at the time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Eb) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor that is 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);
(v4) in whole or in part, as applicable, with the consent of the Majority Holders of 75% (including without limitation, consents obtained in aggregate principal amount connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) upon the release by the Senior Agent of the Liens granted in its favour by the Company or any Guarantor, other than in connection with a repayment and termination of the Credit Facility;
(6) upon the sale or disposition of any Collateral pursuant to the exercise of any rights and remedies by the Senior Agent, on behalf of the Senior Lenders, with respect to any Collateral securing the Credit Facility or the commencement or prosecution of enforcement by the holders of first lien Indebtedness of any of the rights and remedies under any security document securing first lien Indebtedness or applicable law, including, without limitation, the exercise of any rights of set-off or recoupment; and
(7) upon the sale or disposition of Collateral pursuant to the exercise of any rights and remedies by the Collateral Agent with respect to the Collateral securing the Notes then outstanding in accordance with Section 9.02the terms of the Intercreditor Agreement, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) abovethe foregoing, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Note Guarantees and the Collateral Documents shall have been paid; and
. Any release of Collateral permitted by this clause (via) upon shall be deemed not to impair the incurrence by Liens on the Company or any Guarantor of any Permitted Lien on any remaining Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonunder this Indenture.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the The Company and each Guarantor will shall furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Certificate requesting such release, including a statement ;
(2) an Officer’s Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv4) a certificate or opinion of an Opinion of Counsel engineer, appraiser or other expert as to the effect fair value of the Collateral to be released, in accordance with TIA § 314(d); provided that any such certificate or opinion may be made by an officer or legal counsel, as applicable, of the Company except in cases where TIA § 314(d) requires that such accompanying documents constitute all documents required certificate or opinion be made by this Indenture and the Collateral Documents and such release is authorized an independent Person, which Person shall be an independent engineer, appraiser or permitted other expert selected by the Collateral Documents Company; and provided, further, that any such certificate or opinion shall not be required under this Indenturesubclause (4) if the Company reasonably determines that under the terms of TIA § 314(d) or any interpretation or guidance as to the meaning thereof of the Securities and Exchange Commission and its staff, including “no action” letters or exemptive orders, all or any portion of TIA § 314(d) is inapplicable to any release or series of releases of Collateral. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request the Collateral Agent shall execute and deliver such documents and instruments prepared by the Company or as the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture Company and the Collateral Documents shall not be deemed Guarantors may reasonably request to impair evidence such release without the security under this Indenture in contravention consent of the provisions hereof or affect Holders of the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralNotes.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to Section 7.13 of the Intercreditor AgreementsFirst Lien Security Agreement and Section 7.13 of the Second Lien Security Agreement, the Notes Collateral Agent shall not at any time release Liens on the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingSecurities:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest (including Additional Interest, if any) and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.018.1(a) hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.1(b) hereof;
(iii4) in part, so long as such release is not prohibited by this Indenture or any of the Collateral Documents, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by 3.5 or the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; 3.5, (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; nature described in clause (2), clause (3), clause (4), clause (7), clause (8), clause (9) and clause (11) of the proviso in the definition of “Asset Disposition” and is subject to a disposition as therein provided, (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements owned or (E) that at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor Subsidiary of the Company that is has been released from its Subsidiary Guarantee in accordance with this Indenture;, concurrently with the release thereof, (E) that is shares of Capital Stock of a Subsidiary of the Company to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act, due to the fact that such shares of such Subsidiary’s Capital Stock secures the Securities, to file separate financial statements with the SEC (or any other governmental agency), or (F) otherwise in accordance with, and as expressly provided for under, this Indenture, including, without limitation, Article X, or the Collateral Documents; or
(v5) with the consent of Holders of 75662/3% in aggregate or more of the outstanding principal amount of the Notes then outstanding in accordance with Section 9.02Securities, provided, thatunless such release involves all or substantially all of the Collateral, in which case such release will require the case consent of any release each Holder affected thereby (including, without limitation, consents obtained in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company connection with a tender offer or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lienexchange offer for, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonpurchase of, Securities).
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Subsidiary Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii4) all documents required by TIA §314(d), this Indenture and the Collateral Documents; and
(iv5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureDocuments. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Subsidiary Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Subsidiary Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest unless otherwise specified in the released CollateralCollateral Documents.
(dc) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens Notes:
(1) in whole, upon payment in full of the principal of, together with accrued and security interests created by unpaid interest and premium, if any, on the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Notes and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing all other Notes Obligations under this Indenture, the Notes, the Guarantees, Note Guarantees and the Collateral Documents under any one that are due and payable at or more prior to the time of the following circumstancessuch principal, together with accrued and such Liens on the following assets shall automaticallyunpaid interest and premiums, without requirement for consent or approval from the Holdersif any, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:is paid;
(i2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Article XII hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.2 hereof;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 3.5 and by the Collateral Documents, to the extent of the interest sold or disposed of, or and to the extent otherwise not prohibited by this Indenture and the Collateral Documents; , (B) that is cash or Net Proceeds withdrawn from the with respect to ABL Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements Agreement or (EC) that at any time becomes an Excluded PropertyAsset pursuant to a transaction permitted by this Indenture;
(iv5) that is owned by a Guarantor that is released from its Note Guarantee in accordance with this Indenture;; and
(v6) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, 9.2 hereof; provided that, in the case of any release in whole pursuant to clausesclauses (1), (i2), (3), (5) and (ii6) above, all amounts owing to the Trustee and the constituting Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents Obligations have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonpaid in full.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent Trustee of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents11.6(b);
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii3) all documents required by this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement; and
(iv4) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and Indenture, the Collateral Documents and the Intercreditor Agreement and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. Any person may rely on this (dSection 11.6(c) in delivering a certificate requesting release of any collateralCollateral, so long as all other provisions of this Indenture with respect to such release have been complied with.
Appears in 1 contract
Samples: Indenture (REV Group, Inc.)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens Notes and security interests created by the Guarantees, as applicable:
(1) to enable the Issuer or its Restricted Subsidiaries to consummate the sale, transfer or other disposition of such property or assets to the extent not prohibited under Section 4.07;
(2) the release of Excess Proceeds or Collateral Documents at any time Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or from time to time a Collateral Asset Sale Offer conducted in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed the case of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with respect to the Notes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(v4) pursuant to Section 9.02(g), with the consent of the Holders of at least 75% in of the aggregate principal amount of the Notes then outstanding and affected thereby;
(5) pursuant to Section 4.15(c); provided that the Liens on the Collateral securing the Notes and the Notes Obligations will be reinstated upon any Reinstatement Date pursuant to Section 4.15(d);
(6) a release of assets permitted not to be included in accordance the Collateral pursuant clauses (v) and (vi) of the first proviso to Section 2 of the Security Agreement in connection with Section 9.02a Qualified Receivables Transaction (including any Receivables Financing) permitted under this Indenture; or
(7) pursuant to Article 9.
(b) To the extent necessary and for so long as required for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act with respect to the Existing First Priority Notes to file separate financial statements with the SEC (or any other governmental agency), provided, thatthe Capital Stock of any Subsidiary of the Issuer shall not be included in the Collateral with respect to the Notes and shall not be subject to the Liens securing the Notes and the Notes Obligations, in each case to the case extent set forth in Section 2 of any release in whole pursuant to clauses, the Security Agreement.
(c) The Liens on the Collateral securing the Notes and the Guarantees also will be released upon (i) payment in full of the principal of, together with accrued and (ii) aboveunpaid interest on, all amounts owing to the Trustee and the Notes Collateral Agent and all other Obligations under this Indenture, the Notes, the Guarantees and the Collateral Security Documents have been paid; and
that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid or (viii) upon a defeasance under this Indenture pursuant to Article 8 or discharge of the incurrence by Issuer’s and the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonGuarantor’ Obligations under this Indenture in accordance with this Indenture.
(cd) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company The Issuer and each applicable Guarantor will furnish to the Notes Collateral AgentAgent (with a copy to the Trustee), prior to each proposed release of Collateral pursuant to Section 11.05(a)(1) through (7), Section 11.05(b), Section 11.05(c) or pursuant to the Collateral Documents and this IndentureSecurity Documents:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with; and
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentAgent or the Trustee);.
(iiie) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer or the Guarantorsapplicable Guarantor, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)11.05(d), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, Issuer or the GuarantorsGuarantor, as the case may be, the released Collateral, and (b) upon written request take all other actions reasonably requested by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest Issuer in the released Collateralconnection therewith.
(df) The release of any Collateral If the Liens securing the Senior Credit Facility Obligations are released in accordance connection with the terms repayment (including cash collateralization of this Indenture letters of credit) of the Senior Credit Facility Obligations in full and termination of the commitments thereunder, the Liens on the Collateral securing the Notes and the Collateral Documents shall Notes Obligations will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and released, except to the extent the Collateral is or any portion thereof was disposed of in order to repay the Senior Credit Facility Obligations secured by the Collateral. From and after any such time when all the Liens securing the First Lien Obligations other than the Notes and the Notes Obligations are released pursuant to this Indenture or and the Liens on the Collateral Documents securing the Notes remain in existence, if the Issuer or any Guarantor acquires any property or asset constituting Collateral, it shall grant a first-priority perfected security interest (subject to Permitted Liens) upon such property as security for the Notes as required under Section 11.04.
(g) To the extent the Trustee is required to execute or direct the Collateral Agent to execute any release, discharge or termination of under this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral., including without limitation under this
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to Section 6.1 of the Intercreditor AgreementsAgreement, the Notes Collateral Agent shall not at any time release Liens on the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingSecurities:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.0110.1(a) hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle VIII hereof;
(iii4) in part, so long as such release is not prohibited by this Indenture or any of the Security Documents, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company Issuers or any of its their Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Security Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from of the Collateral Account for any one or more purposes permitted by Section 3.02; nature described in the proviso in the definition of “Asset Sale” and is subject to a disposition as therein provided, (C) that is ABL Collateral, pursuant to the terms owned or at any time acquired by a Subsidiary of the ABL Intercreditor Agreement; Issuers that has been released from its obligations under the Guaranty in accordance with this Indenture, concurrently with the release thereof, (D) that is Notes Collateral, shares of Capital Stock of a Subsidiary of the Issuers (other than INI) to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the terms Securities Act, due to the fact that such shares of such Subsidiary’s Capital Stock secures the Notes Intercreditor Agreements Securities, to file separate financial statements with the SEC (or any other governmental agency), or (E) that at any time becomes Excluded Property;otherwise in accordance with, and as expressly provided for under, this Indenture, including, without limitation, Article X, or the Security Documents; or
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v5) with the consent of Holders of 75% in aggregate 66⅔% or more of the outstanding principal amount of the Notes then outstanding in accordance with Section 9.02Securities, provided, thatunless such release involves all or substantially all of the Collateral, in which case such release will require the case consent of any release each Holder affected thereby (including, without limitation, consents obtained in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company connection with a tender offer or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lienexchange offer for, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonpurchase of, Securities).
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company Issuers and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Security Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii4) all documents required by TIA §314(d), this Indenture and the Collateral Security Documents; and
(iv5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureSecurity Documents. Upon compliance by the Company Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuers or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause be authorized to be released release and reconveyed reconvey to the CompanyIssuers, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest unless otherwise specified in the released CollateralSecurity Documents.
(dc) The For purposes of the TIA, to the extent required, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Security Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Security Documents if and to the extent the Collateral is released pursuant to this Indenture Indenture, the Intercreditor Agreement, the Second Lien Intercreditor Agreement or the Collateral Security Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Collateral Trustee’s Liens upon the Intercreditor Agreements, Collateral will no longer secure the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of or other Obligations outstanding under this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at but not necessarily any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guaranteesother Priority Lien Debt), and the Collateral Documents under any one or more right of the following circumstances, Holders to the benefits and such proceeds of the Collateral Trustee’s Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein other than notice of such release to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be discharged:
(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 which has become (and only to the applicable Collateral Document), be released, terminated and discharged upon any of the followingextent it continues to constitute) Excluded Property;
(2) in whole upon:
(i) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01;Article XI; or
(ii) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance as Covenant Defeasance set forth in Section 8.02 or Section 8.03, as applicableArticle VIII;
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company or any of its Subsidiaries a Subsidiary Guarantor (other than to the Company or a Subsidiary Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; (B) that is cash Documents at the time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Eb) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Subsidiary Guarantor that is has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee or (c) solely with respect to the release of a Subsidiary Guarantee under Section 10.02, 10.03 or 10.04, the Capital Stock of the released Subsidiary Guarantor, concurrently with the release of such Subsidiary Guarantee;
(v4) in whole or in part, as applicable, with the consent of Holders of 75(i) 66-2/3% or more in aggregate principal amount of the Notes then outstanding Notes if releasing all or substantially all Collateral and (ii) 50% or more in aggregate principal amount of then outstanding Notes if releasing less than all or substantially all Collateral (in each case, including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in whole or in part, in accordance with the applicable provisions of the Collateral Document or the Collateral Trust Agreement;
(6) to the extent any lease is Collateral, upon termination of such lease;
(7) with respect to Collateral that is Capital Stock, upon the dissolution or liquidation of the issuer of such Capital Stock that is not prohibited by this Indenture; or
(8) as described in Section 9.02, provided, that.
(b) Each of the releases described in clauses (1) through (7) of this Section 13.07 (other than clauses (4) and (5) (but only, in the case of any release in whole pursuant to clausesclause (5), (i) and (ii) above, all amounts owing to the Trustee and extent that such consent of the Notes Collateral Agent under this Indenture, Holders is required by the Notes, applicable provisions of the Guarantees and security document or the Collateral Documents have been paid; and
(viTrust Agreement)) upon the incurrence shall be effected by the Company Collateral Trustee without the consent of the Holders or any Guarantor action on the part of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Trustee. The Company and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of such Collateral pursuant to the security document and this Indenture, an Officer’s Certificate to the effect that such transaction and the disposition of the proceeds thereof will comply with the terms of the Collateral Documents and this Indenture:, as applicable.
(ic) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantorsany Subsidiary Guarantor, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent Trustee, at the written request and sole expense of the Company, shall promptly cause to be released and reconveyed to the Company, Company or the Subsidiary Guarantors, as the case may be, the released Collateral. Dated as of August 27, 2021 ALTERA INFRASTRUCTURE HOLDINGS L.L.C. By: /s/ Mxxx Xxxxxxxx Name: Mxxx Xxxxxxxx Title: President By: Altera Infrastructure GP L.L.C., its general partner By /s/ Mxxx Xxxxxxxx Name: Mxxx Xxxxxxxx Title: Vice President and (b) upon written request by Company Secretary as Trustee By: /s/ Jxxxxx X Xxxx Name: Jxxxxx X Xxxx Title: Vice President No. ________ $______________ promise to pay to _______________________________ or registered assigns the Company principal sum of ____________________ DOLLARS [or such greater or lesser amount as may be indicated on the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing attached Schedule of appropriate termination statements or other documents to terminate the security interest Increases and Decreases in the released Collateral.
(d) The release of any Collateral Global Note] on August 15, 2026. Interest Payment Dates: February 15 and August 15 Record Dates: February 1 and August 1 Dated: ALTERA INFRASTRUCTURE HOLDINGS L.L.C. By: Name: Title: in accordance with the terms of this Indenture and within-mentioned Indenture. U.S. BANK NATIONAL ASSOCIATION, as Trustee By: Authorized Signatory [Insert the Collateral Documents shall not be deemed Global Note Legend, if applicable pursuant to impair the security under this Indenture in contravention provisions of the provisions hereof or affect Indenture] [Insert the Lien of this Indenture or the Collateral Documents Private Placement Legend, if and applicable pursuant to the extent provisions of the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.]
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company Issuer and the Guarantors will be are entitled to the releases of property and other assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, Notes and the related Note Guarantees, and the Collateral Documents as applicable, under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, such series of Notes and all other related Obligations under this Indenture, the Note Guarantees and the Third Lien Notes Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest and premium, if any, are paid;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article IX;
(ii3) in whole, upon a legal defeasance or covenant defeasance with respect to such series as set forth in Section 8.02 or Section 8.03, as applicableunder Article IX;
(iii4) in whole or in part, as to any asset constituting Collateral, in accordance with, and as expressly provided for under, the Third Lien Notes Security Documents and this Indenture;
(5) with the consent of Holders of at least 662⁄3% in aggregate principal amount of such series of Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, such series of Notes as provided under Section 8.02;
(6) as to the property and assets of a Subsidiary Guarantor that is released from its Note Guarantee in accordance with Section 10.03;
(7) in part, as to any property or assets constituting Collateral (A) Collateral, to enable the Issuer and/or Guarantors to consummate the disposition of such property or other assets to a Person that is sold or otherwise disposed of by not the Company or any of its Subsidiaries (other than to the Company Issuer or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, Guarantor to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property4.08;
(iv) 8) as to any property or assets that is owned by a Guarantor that is released from its Guarantee in accordance with this Indentureare Excluded Assets;
(v9) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery enforcement action taken by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, Agents (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest defined in the released Collateral.
(dFirst Lien and Third Lien Intercreditor Agreement) The release of any Collateral in accordance with the terms of the First Lien and Third Lien Intercreditor Agreement; and
(10) as described under Article VIII hereof.
(b) [Reserved]
(c) If required by this Indenture, upon delivery by the Issuer or such Guarantor to the Trustee of a form of release accompanied by an Officer’s Certificate that such release is permitted under the terms of the Indenture and the Collateral Documents shall not be deemed to impair Third Lien Notes Security Documents, as applicable, the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or Trustee and the Collateral Documents if and Agent shall execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the extent the release of any Collateral is permitted to be released pursuant to this Indenture or the Third Lien Notes Security Documents and shall do or cause to be done (at the Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the Trustee nor the Collateral Documents Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or upon in any Third Lien Notes Security Document to the termination contrary, the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralrelease, satisfaction or termination, unless and until it receives such Officer’s Certificate.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time with respect to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Intermediate Holdings Guarantee and the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article 13;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article 8;
(iii4) in whole or in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 accordance with, and by as expressly provided for under, the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with and this Indenture;
(v5) with the consent of Holders of 75% sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes then outstanding Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes;
(6) with respect to assets of Intermediate Holdings or a Note Guarantor upon release of Intermediate Holdings from its Intermediate Holdings Guarantee or such Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) to enable the disposition of property or other assets that constitute Collateral to the extent not prohibited by Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, 4.10.
(ib) The Issuer and (ii) above, all amounts owing each Note Guarantor will furnish to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Section 14.07(a)(1) through (7) or pursuant to the Collateral Documents and this IndentureDocuments:
(i1) an Officer’s Certificate requesting such release, including a statement ;
(2) an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including with; (3) solely in the delivery to the Notes Collateral Agent case of all documents required under this a release described in Section 11.06(c14.07(a)(1) and that the release is permitted by this Indenture and the Collateral Documents;
through (ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent5);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) , an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.Section 15.02(ii); and
Appears in 1 contract
Samples: Indenture (Domus Holdings Corp)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Notes and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes and all other obligations thereunder;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01the Indenture;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.03 hereof;
(iii4) in whole or in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 4.10 and by the Collateral Documents, Documents (to the extent of the interest sold or disposed of, ) or otherwise not prohibited permitted by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from otherwise in accordance with, and as expressly provided for under, this Indenture or the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv5) in whole as to all Collateral that is owned by a Guarantor that is released from its Note Guarantee in accordance with this Indenture;; and
(v6) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Notes); provided, that, in the case of any release in whole pursuant to clauses, clauses (i1) and through (ii3) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money LienNote Guarantees, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:the Intercreditor Agreement have been paid or otherwise provided for to the reasonable satisfaction of the Trustee.
(ib) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, clauses (a) and (b) of this Section 11.09, the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, Company or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by Collateral in accordance with the Company or directions of the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released CollateralCompany.
(dc) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. Any person Notwithstanding any provision to the contrary herein, as and when requested in writing by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver Uniform Commercial Code or similar financing statement amendments or releases (or amendments or releases to other perfection documents or registrations) (which shall be prepared by the Company) solely to the extent necessary to delete any such released Collateral from the description of assets in any previously filed financing statements or other perfection documents or registrations. If requested in writing by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Company) and to take such other action as the Company may rely on this request to evidence or confirm that released Collateral described in the immediately preceding sentence has been released from the Liens of each of the Collateral Documents. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Trustee.
(d) Notwithstanding any provision to the contrary herein, as and when requested by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver Uniform Commercial Code financing statement amendments or releases (or amendments or releases to other perfection documents or registrations) (which shall be prepared by the Company) solely to the extent necessary to delete Excluded Assets from the description of assets in delivering a certificate requesting release any previously filed financing statements or other perfection documents or registrations. If requested by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Company) and to take such other action as the Company may request to evidence or confirm that Excluded Assets described in the immediately preceding sentence has been released from the Liens of any collateraleach of the Collateral Documents. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Trustee.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Liens of the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release Holders on the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent automatically and without the any need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in wholewhole 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;
(ii) in whole or in part, upon the election of the Issuer following the Suspension Date pursuant to Section 3.13;
(iii) in whole upon:
(1) satisfaction and discharge of this Indenture as set forth in Section 12.01;8.1(a); or
(ii2) in whole, upon a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.02 or Section 8.03, as applicable8.1(b);
(iiiiv) in part, as to any property constituting Collateral that (Ax) that is sold sold, transferred or otherwise disposed of by the Company Issuer or any of its Subsidiaries Guarantor (other than to the Company Issuer or a another Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and at the Collateral Documents; (B) that is cash time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Ey) that is owned or at any time becomes Excluded Propertyacquired by a Guarantor that has been released from its Note Guarantee in accordance with this Indenture, concurrently with the release of such Note Guarantee;
(ivv) pursuant to an amendment in accordance with Article IX;
(vi) in whole as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid10.2; and
(vivii) upon in part, in accordance with the incurrence by applicable provisions of the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonDocuments.
(cb) For all circumstances in Section 11.06(b) (other than In connection with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed any termination or release of any Liens of the Holders in all or any portion of the Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent or any of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release , the Trustee shall, or shall be in form reasonably satisfactory cause the Collateral Agent to, promptly execute, deliver or acknowledge all documents, instruments and releases necessary to release, reconvey to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or Issuer and/or the Guarantors, as the case may be, such Collateral or otherwise give effect to, evidence or confirm such termination or release in accordance with the conditions precedent set forth above in connection with any release directions of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to Issuer and/or the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the GuarantorsGuarantor, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the such Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely The Trustee and each of the Holders each acknowledge and direct the Trustee and the Collateral Agent that a release of Collateral or a Lien in accordance with the terms of any Collateral Document and this Article XI shall not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture.
(d) Notwithstanding any provision to the contrary herein, as and when requested by the Issuer or any Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver Uniform Commercial Code financing statement amendments or releases (which shall be prepared by the Issuer or such Guarantor) solely to the extent necessary to delete property or assets not required to be subject to a Lien under the Collateral Documents from the description of assets in delivering any previously filed financing statements. If requested in writing by the Issuer or any Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Issuer or such Guarantor) and to take such other action as the Company may request to evidence or confirm that such property or assets not required to be subject to a certificate requesting release Lien under the Collateral Documents described in the immediately preceding sentence has been released from the Liens of any collateraleach of the Collateral Documents.
Appears in 1 contract
Samples: Indenture (American Axle & Manufacturing Holdings Inc)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time with respect to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Intermediate Holdings Guarantee and the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article 13;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article 8;
(iii4) in whole or in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed in accordance with the provisions of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, the Intercreditor Agreement and this Indenture, including upon release from the Liens securing all First Lien Priority Indebtedness in accordance with the Intercreditor Agreement (other than due to the extent repayment or termination of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded PropertyFirst Lien Priority Indebtedness);
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v5) with the consent of Holders of 75% sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes then outstanding Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes;
(6) with respect to assets of Intermediate Holdings or a Note Guarantor upon release of Intermediate Holdings from its Intermediate Holdings Guarantee or such Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) to enable the disposition of property or other assets that constitute Collateral to the extent not prohibited by Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, 4.10.
(ib) The Issuer and (ii) above, all amounts owing each Note Guarantor will furnish to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release the Collateral Agent providing any requested written evidence of Collateral release pursuant to Section 14.07(a)(1) through (7) or pursuant to the Collateral Documents and this IndentureDocuments:
(i1) an Officer’s Certificate requesting such release, including a statement ;
(2) an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) solely in the case of a release described in Section 14.07(a)(1) through (3), (5) and (7), an Opinion of Counsel in accordance with Section 15.02(b);
(4) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse to or representation or warranty to by the Notes Collateral AgentTrustee);.
(iiic) all documents required by this Indenture and Neither the Trustee nor the Collateral Documents; andAgent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel.
(ivd) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer, Intermediate Holdings or the Note Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture, upon delivery by the Company Issuer or Intermediate Holdings or such Note Guarantor to the Notes Trustee and the Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuer, Intermediate Holdings or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and (b) upon written request take all other actions reasonably requested by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest Issuer in the released Collateralconnection therewith.
(de) The release From and after any such time when all the Liens securing the First Lien Priority Indebtedness are released but the Liens on the Collateral securing the Notes remain in existence, if the Issuer, Intermediate Holdings or any Note Guarantor acquires any property or asset constituting Collateral, including any Material Real Property, it must as promptly as practicable execute and deliver such security instruments, financing statements, Mortgages, and, with respect to any Material Real Property, deliver such title insurance policies and certificates and opinions of any Collateral in accordance with the terms of counsel and surveys as required under Section 14.06 as are required under this Indenture and Indenture, the Collateral Documents and the Intercreditor Agreement to vest and perfect in favor of the Collateral Agent a security interest with the same priority as the other Collateral upon such property or asset as security for the Notes (subject to Permitted Liens), the Intermediate Holdings Guarantee and the Note Guarantees and as may be necessary to have such property or asset added to the Collateral and thereupon all provisions of the Indenture relating to the Collateral shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof relate to such after-acquired property or affect the Lien of this Indenture or the Collateral Documents if and asset to the same extent and with the same force and effect. If, after the Collateral is released pursuant in full as contemplated by the Intercreditor Agreement or, after it becomes effective, the Pari Passu Intercreditor Agreement, and, thereafter, the Issuer, Intermediate Holdings or any Note Guarantor subsequently incurs First Lien Priority Indebtedness or Second Lien Priority Indebtedness that is secured by Liens on assets of the Issuer, Intermediate Holdings or any Note Guarantor of the type constituting Collateral (other than Excluded Property), then the Issuer, Intermediate Holdings and the Note Guarantors shall be required to this Indenture secure the Notes, the Intermediate Holdings Guarantee and the Note Guarantees, as applicable, at such time by a Lien on the Collateral with the priority and terms substantially as set forth in the Intercreditor Agreement or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralPari Passu Intercreditor Agreement.
Appears in 1 contract
Samples: Indenture (Realogy Holdings Corp.)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release The Liens on the Collateral from the security interests created by the Collateral Security Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the any need for any further action by any Person (except as provided herein or in the applicable Collateral Document)other Person, be released, terminated released with respect to the Notes and discharged upon any of the followingGuarantee:
(i1) in whole, upon payment in full of the principal of and premium, if any, and interest, on the Notes;
(2) in whole, upon the satisfaction and discharge of this Indenture as set forth in Section 12.01Indenture;
(ii3) in whole, upon a legal defeasance or covenant defeasance of the Notes as set forth in Section 8.02 or Section 8.03, as applicableArticle VIII;
(iii4) in whole or in part, as to any property or assets constituting Collateral (A) that is sold or otherwise disposed of owned by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v5) in whole or in part, with the consent of Holders of 75% in aggregate principal amount the requisite percentage of the Notes then outstanding in accordance with Section 9.029.2;
(6) to the extent provided in the applicable provisions of the Security Documents; and
(7) in whole, upon a Guarantee and Collateral Release Event; provided, thathowever, that in the case of any release in whole pursuant to clausesSections 11.3(a)(1), (i11.3(a)(2) and (iior 11.3(a)(3) above, all amounts owing to the Trustee and with respect to the Notes have been paid or duly provided for.
(b) Upon the occurrence of any of the circumstances set forth in Section 11.3(a), and delivery to the Trustee of an Officers' Certificate and Opinion of Counsel, the Trustee shall as required pursuant to Section 7.2 of the Intercreditor Agreement, give written direction to the Collateral Agent under this Indentureto release all the Collateral from the Lien of the Security Agreement, and shall direct the NotesCollateral Agent to, promptly execute and deliver such documents and other instruments provided to the Guarantees Trustee and the Collateral Documents have been paid; and
(vi) upon Agent and make or authorize the incurrence making of such filings and registrations as may be reasonably requested by the Company or any to evidence the release and reconveyance to the Guarantor of any Permitted Lien on any Collateral that is the Collateral; provided that, with respect to the occurrence of the circumstances described in Section 11.3(a)(6), no further deliveries to the Trustee shall be required as a purchase money Lien, or is a pre-existing Lien on property acquired after condition to the Issue Date where the terms Trustee's delivery of such Lien prohibit written direction to the Collateral Agent beyond those required in the Security Documents and, with respect to the occurrence of the circumstance described in Section 11.3(a)(7), the Trustee shall not require any certificates or opinions of counsel as a condition to the Trustee's delivery of such written direction to the Collateral Agent other Liens thereonthan (i) delivery of the Officer's Certificate described in clause (1) of the definition of “Guarantee and Collateral Release Event” and (ii) delivery of an Officer's Certificate certifying that the conditions described in clauses (2), (3) and (4) of such definition have been satisfied.
(c) For all circumstances in Notwithstanding the covenant set forth under Section 11.06(b) (other than with respect to clauses (iii) 4.4 and (vi) thereof)the conditions of Section 10.4, the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Liens on the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair reinstated following a Guarantee and Collateral Release Event, even if the security under this Indenture in contravention Guarantee is reinstated as contemplated by the definition of the provisions hereof or affect the Lien of this Indenture or the “Guarantee and Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralRelease Event.”
Appears in 1 contract
Samples: Indenture (Tupperware Brands Corp)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Notes and the Collateral Documents. The Company related Guarantees, as applicable:
(i) in whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Guarantors will be entitled to releases of property Notes and assets included in the Collateral from the Liens securing all other related Obligations under this Indenture, the Notes, the Guarantees, Guarantees and the Collateral Security Documents under any one that are due and payable at or more of prior to the following circumstancestime such principal, together with accrued and such Liens on the following assets shall automaticallyunpaid interest and premium, without requirement for consent or approval from the Holdersif any, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:are paid;
(iii) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article VIII;
(iiiii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article VIII;
(iiiiv) in whole or in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by Collateral, in accordance with, and as expressly provided for under, the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Security Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with and this Indenture;
(v) with the consent of Holders of 75at least 662/3% in aggregate principal amount of such series of Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, such series of Notes as provided under Section 9.2;
(vi) [reserved]; and
(vii) in part, as to any property or assets constituting Collateral, to enable the Notes then outstanding in accordance with disposition of such property or other assets (to a Person that is not the Issuer or a Guarantor) to the extent not prohibited by Section 9.023.7 (including, providedfor the avoidance of doubt, that, in the case of OWN/DAS Disposal and any release in whole pursuant to clauses, Alternative OWN/DAS Disposal).
(ib) and (ii) above, all amounts owing The Issuer or the applicable Guarantor will furnish to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Sections 11.8(i) through (vi) or pursuant to the Collateral Documents and this IndentureSecurity Documents:
(i1) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii2) solely in the case of a release described in Sections 11.8(i) through (v), an Opinion of Counsel in accordance with Section 12.2(b); and
(3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Trustee or the Collateral Agent);.
(iiic) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer or the Guarantorsany Guarantor, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture upon delivery by the Company Issuer or such Guarantor to the Notes Collateral Agent Trustee of an Officer’s Certificate (and, with respect to a release described in Sections 11.8(a)(i) through (v), an Opinion of Counsel in accordance with Section 12.2(b)) to the effect that such conditions precedent have been complied with, (a) the Trustee or shall direct the Notes Collateral Agent shall to promptly cause to be released and reconveyed to the Company, Issuer or the Guarantorsrelevant Guarantor, as the case may be, the released Collateral, and (b) upon written request take all other actions reasonably requested by the Company Issuer or such Guarantor in connection therewith, at the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released CollateralIssuer’s expense.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or Collateral securing the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in wholewhole or in part, upon 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;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Section 12.01;Article XII hereof; or
(iib) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle VIII hereof;
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company Issuers or any of its Subsidiaries Subsidiary Guarantor (other than to the Company Issuers or a Guarantoranother Restricted Subsidiary) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; (B) that is cash Security Documents at the time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Eb) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Subsidiary Guarantor that is has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary);
(v4) in whole or in part, as applicable, with the consent of Holders of 7566 2/3% in aggregate principal amount of the Notes then outstanding (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes); or
(5) in part, in accordance with Section 9.02the applicable provisions of the Security Documents, provided, the Collateral Trust and Intercreditor Agreement and the ABL Intercreditor Agreement; provided that, in the case of any release in whole pursuant to clausesclauses (1), (i2) and (ii4) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees Note Guarantees, the Security Documents, the Collateral Trust and Intercreditor Agreement and the Collateral Documents ABL Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) To the extent a proposed release of Collateral is not automatic and (vi) thereof)requires the action by the Trustee or the Collateral Agent, the Company Issuers and each Subsidiary Guarantor will furnish to the Notes Trustee and the Collateral Agent, prior to each proposed release of such Collateral pursuant to the Collateral Security Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release;
(2) an Officers’ Certificate and an Opinion of Counsel, including a statement in compliance with Sections 13.4 and 13.5 to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Trustee and Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Trustee and Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv4) an Opinion upon qualification of Counsel the Indenture under the TIA subject to and only to the effect that such accompanying extent applicable pursuant to Section 11.2(d), any other documents constitute all documents or instruments required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. to be delivered pursuant to TIA §314(d).
(c) Upon compliance by the Company Issuers or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuers or such Subsidiary Guarantor to the Notes Trustee and Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuers, or the Subsidiary Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Security Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Security Documents if and to the extent the Collateral is released pursuant to this Indenture or and the Collateral Security Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Northern Tier Energy LLC)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets Collateral shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent automatically and without the any need for any further action by any Person (except as provided herein or in be released only with respect to the applicable Collateral Document), be released, terminated and discharged upon any of the followingNotes:
(i) in wholewhole or in part, upon 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;
(ii) in whole upon:
(1) satisfaction and discharge of this Indenture as set forth in Section 12.01;8.01(a); or
(ii2) in whole, upon a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.02 or Section 8.03, as applicable8.01(b);
(iii) in part, as to any property constituting Collateral that (Ax) that is sold sold, transferred or otherwise disposed of by the Company or any of its Subsidiaries Subsidiary Guarantor (other than to the Company or a Subsidiary Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and at the Collateral Documents; (B) that is cash time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Ey) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Subsidiary Guarantor that is has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary);
(iv) pursuant to an amendment in accordance with Article IX;
(v) with the consent of Holders of 75% in aggregate principal amount whole as to all Collateral that is owned by a Subsidiary Guarantor that is (x) released from its guarantee of the Notes then outstanding First Lien Debt that required such Subsidiary to become a Subsidiary Guarantor hereunder or (y) released from its Subsidiary Guarantee in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid10.02; and
(vi) upon in part, in accordance with the incurrence by the Company or any Guarantor applicable provisions of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:the Intercreditor Agreements.
(ib) an Officer’s Certificate requesting such release, including a statement In connection with any termination or release of any Liens in all or any portion of the Collateral pursuant to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent or any of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
, the Trustee shall, or shall cause the Junior Lien Collateral Agent to, promptly execute, deliver or acknowledge all documents, instruments and releases (ii) a form of such release (which release shall be in form and substance reasonably satisfactory to the Notes Collateral Agent and shall provide Agent) that the have been requested release is without recourse or warranty to release, reconvey to the Notes Collateral Agent);
(iii) all documents required by this Indenture and Company and/or the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, such Collateral or otherwise give effect to, evidence or confirm such termination or release in accordance with the conditions precedent set forth above in connection with any release directions of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to and/or the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the GuarantorsSubsidiary Guarantor, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the such Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely The Trustee and each of the Holders each acknowledge and direct the Trustee and the Collateral Agent that a release of Collateral or a Lien in accordance with the terms of any Collateral Document and this Article XI will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture.
(d) Notwithstanding any provision to the contrary herein, as and when requested by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Junior Lien Collateral Agent to authorize the filing of Uniform Commercial Code financing statement amendments or releases (which shall be prepared by the Company or such Subsidiary Guarantor) solely to the extent necessary to delete or release Liens on property or assets not required to be subject to a Lien under the Collateral Documents from the description of assets in delivering any previously filed financing statements. If requested in writing by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Junior Lien Collateral Agent to execute such documents, instruments or statements reasonably requested (in form and substance reasonably satisfactory to the Collateral Agent) of it (which shall be prepared by the Company or such Subsidiary Guarantor) and to take such other action as the Company may request to evidence or confirm that such property or assets not required to be subject to a certificate requesting Lien under the Collateral Documents described in the immediately preceding sentence has been released from the Liens of each of the Collateral Documents. The Junior Lien Collateral Agent shall execute and deliver such documents, instruments and statements (in form and substance reasonably satisfactory to the Collateral Agent) and shall take all such actions promptly upon receipt of such instructions from the Company, any Subsidiary Guarantor or the Trustee and at the Company’s sole cost and expense.
(e) In no event shall the Trustee or Collateral Agent be obligated to execute or deliver any document evidencing any release or reconveyance without receipt of any collateralan Opinion of Counsel and Officers’ Certificate, each stating that such release complies with this Indenture, the Intercreditor Agreements and the Collateral Documents.
Appears in 1 contract
Samples: Indenture (McClatchy Co)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or Collateral securing the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), shall be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, and accrued and unpaid interest and premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Indenture;
(ii3) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.03 hereof;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or Collateral disposed of, upon the sale or otherwise not prohibited by other disposition of all or any portion of the Collateral in accordance with, and as expressly provided for under, this Indenture and (subject to any continuing Lien on the Collateral Documentsproceeds of such sale or other disposition); (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;and
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v5) with the consent of the Holders of 75% a majority in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company including consents obtained in connection with a tender offer or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lienexchange offer for, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonpurchase of, Notes.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will The Issuers shall furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:Sections 10.03(a)(1), (2), (3) or (5):
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents Pledge Agreement to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii3) all documents required by this Indenture and the Collateral DocumentsPledge Agreement; and
(iv4) an Opinion of Counsel to the effect that such release and other accompanying documents constitute all documents documents, and contain the terms and conditions, required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents Pledge Agreement and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, Issuers with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)if any), and upon delivery by the Company or such Guarantor Issuers to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, Company the released Collateral, and (b) upon written request by the Trustee and Collateral Agent shall promptly execute and deliver to the Company such instruments of release or reconveyance and other documents as the applicable GuarantorCompany may request.
(c) In case of any release of Collateral pursuant to Section 10.03(a)(4), such release shall be automatic without any action of the Trustee, the Notes Collateral Agent will file, or authorize any other Person and the filing Trustee and Collateral Agent shall promptly execute and deliver to the Company such instruments of appropriate termination statements or release and other documents to terminate as the security interest in the released CollateralIssuer or such Guarantor may request.
(d) The release of any Collateral in accordance with from the terms Lien of this Indenture and the Collateral Documents Pledge Agreement shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon terms hereof and of the termination Pledge Agreement. To the extent applicable, the Company shall cause Section 314(d) of this Indenturethe TIA relating to the release of property from the Lien of the Pledge Agreement to be complied with. Any person certificate or opinion required by Section 314(d) of the TIA may rely on this be made by any Officer of the Company, provided, that to the extent required by Section 314(d) of the TIA, any such certificate or opinion shall be made by an independent appraiser or other expert (das such terms are set forth in Section 314(d) in delivering a certificate requesting release of any collateralthe TIA).
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens Notes and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article VIII;
(ii3) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article VIII;
(iii4) in whole or in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with with, and as expressly provided for under, the Security Documents and this Indenture;
(v5) with the consent of Holders of 75at least 662⁄3% in aggregate principal amount of the Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes then outstanding in accordance as provided under Section 9.2;
(6) with Section 9.02respect to assets of a Subsidiary Guarantor, provided, that, in the case upon release of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing such Subsidiary Guarantor from its Guarantee with respect to the Trustee Term Loan Credit Agreement and any other Parity Lien Debt other than by reason of payment under or the Notes termination or repayment of the Term Loan Credit Agreement or such other Parity Lien Debt;
(7) upon such Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paidbecoming Excluded Collateral; and
(vi) upon 8) in part, to enable the incurrence disposition of property or other assets that constitute Collateral to the extent not prohibited by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonSection 4.10.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company The Issuer and each Guarantor will furnish to the Notes Trustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to Section 11.7(a)(1) through (8) or pursuant to the Collateral Documents and this IndentureSecurity Documents:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) solely in the case of a release described in Section 11.7(a)(1) through (5), an Opinion of Counsel in accordance with Section 12.2(b); and
(4) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Trustee or the Collateral Agent);.
(iiic) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuer or such Guarantor to the Notes Collateral Agent of Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or shall direct the Notes Collateral Agent shall to promptly cause to be released and reconveyed to the Company, Issuer or the Guarantorsrelevant Guarantor, as the case may be, the released Collateral, and (b) upon written request take all other actions reasonably requested by the Company or Issuer in connection therewith, at the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released CollateralIssuer’s expense.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Vertiv Holdings Co)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets Collateral shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent automatically and without the need for any further action by any Person (except as provided herein or in be released with respect to the applicable Collateral Document), be released, terminated and discharged upon any of the followingNotes:
(i1) 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;
(2) in whole, upon upon:
(a) satisfaction and discharge of this Indenture as set forth in under Section 12.01;; or
(iib) in whole, upon a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.02 or Section 8.03, as applicabledescribed under Article 8;
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company Issuer or any of its Subsidiaries Guarantor (other than to the Company Issuer or a another Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; Documents at the time of such sale, transfer or disposition or (Bb) 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 Subsidiary Guarantor as an Unrestricted Subsidiary);
(4) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property4.10(a);
(iv5) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) whole or in part, as applicable, with the consent of Holders of 7566 2/3% in aggregate principal amount of the Notes then outstanding (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes); and
(6) in part, in accordance with Section 9.02the applicable provisions of the Collateral Documents and the Intercreditor Agreements, provided, that, in the case of any release in whole pursuant to clauses, clauses (i1) and through (ii5) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and Guarantees, the Collateral Documents and the Intercreditor Agreements have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with With respect to clauses (iii) the release of Premises and (vi) thereof)other principal properties that constitute Collateral, the Company Issuer and each Guarantor will shall furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuer or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuer, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request the Collateral Agent shall execute and deliver such documents and instruments prepared by the Company or Issuer as the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture Issuer and the Collateral Documents shall not be deemed Guarantors may reasonably request to impair evidence such release without the security under this Indenture in contravention consent of the provisions hereof or affect Holders of the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralNotes.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (Postmedia Network Canada Corp.)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreementsapplicable law, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or Collateral securing the Notes Collateral Agent issued under this Indenture will automatically and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon satisfaction and discharge connection with any sale or other disposition of this Indenture as set forth in Section 12.01;
(ii) in whole, upon Collateral to a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) Person that is sold not a Restricted Subsidiary (but excluding any transaction subject to Article 5), if such sale or other disposition does not violate Section 4.10 or is otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v2) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole a Guarantor that is released from its Note Guarantee pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under terms of this Indenture, the release of the Capital Stock, of such Guarantor;
(3) in accordance with Article 9;
(4) upon payment in full of principal, interest and all other obligations on the Notes or defeasance or discharge of the Notes, the Guarantees and the Collateral Documents have been paid; andas provided in Article 11;
(vi5) upon the incurrence by if the Company designates any Restricted Subsidiary to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture, the release of the Capital Stock of such Unrestricted Subsidiary; or
(6) as otherwise permitted in accordance with this Indenture.
(b) Notwithstanding anything to the contrary, no sale, transfer, lease or other disposal of Collateral by any Person to the Company, any Guarantor or any Guarantor Restricted Subsidiary shall result in the release of any Permitted the Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonCollateral.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent required by this Indenture for the release of principal properties that constitute Collateral, the Company and each Guarantor will furnish to the Notes Trustee and the Collateral Agent, prior to each proposed release of such Collateral pursuant to the Collateral Security Documents and this Indenture:
(i) , an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents as required by this Indenture and the Collateral Documents; andIndenture.
(ivd) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release and the requirements of Collateral (whether or not such compliance is required under this Section 11.06(c))the Intercreditor Agreement, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Atento S.A.)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time with respect to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Intermediate Holdings Guarantee and the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article 13;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article 8;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by accordance with the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent provisions of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v5) with the consent of Holders of 75% sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes then outstanding Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes;
(6) with respect to assets of Intermediate Holdings or a Note Guarantor upon release of Intermediate Holdings from its Intermediate Holdings Guarantee or such Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) to enable the disposition of property or other assets that constitute Collateral, other than to an obligor in respect of the Notes, to the extent not prohibited by Section 9.02, provided, 4.10. provided that, in the case of any release in whole pursuant to clausesclauses (1), (i2), (3) and (ii4) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Intermediate Holdings Guarantee, the Note Guarantees and the Collateral Documents shall have been paid; and
(vi) upon . For the incurrence by avoidance of doubt, the Company Collateral securing the Notes will not be released due to repayment or any Guarantor termination of any Permitted First Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonPriority Indebtedness.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company The Issuers and each Note Guarantor will furnish to the Notes Trustee and the Collateral Agent, prior to each proposed release the Collateral Agent providing any requested written evidence of Collateral release pursuant to Section 14.07(a)(1) through (7) or pursuant to the Collateral Documents and this IndentureDocuments:
(i1) an Officer’s Certificate requesting such release, including a statement ;
(2) an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) solely in the case of a release described in Section 14.07(a)(1) through (3), (5) and (7), an Opinion of Counsel in accordance with Section 15.02(b);
(4) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse to or representation or warranty to by the Notes Collateral AgentTrustee);.
(iiic) all documents required by this Indenture and Neither the Trustee nor the Collateral Documents; andAgent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel.
(ivd) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer, the Co-Issuer, Intermediate Holdings or the Note Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture, upon delivery by the Company Issuer, the Co-Issuer or Intermediate Holdings or such Note Guarantor to the Notes Trustee and the Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuer, the Co-Issuer, Intermediate Holdings or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and (b) upon written request take all other actions reasonably requested by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest Issuer in the released Collateralconnection therewith.
(de) The release From and after any such time when all the Liens securing the First Lien Priority Indebtedness are released but the Liens on the Collateral securing the Notes remain in existence, if the Issuer, the Co-Issuer, Intermediate Holdings or any Note Guarantor acquires any property or asset constituting Collateral, including any Material Real Property, it must as promptly as practicable execute and deliver such security instruments, financing statements, Mortgages, and, with respect to any Material Real Property, deliver such title insurance policies and certificates and opinions of any counsel and surveys as required under Section 14.06 as are required under this Indenture, the Collateral Documents and the Intercreditor Agreement to vest and perfect in accordance favor of the Collateral Agent a security interest with the terms same priority as the other Collateral upon such property or asset as security for the Notes (subject to Permitted Liens), the Intermediate Holdings Guarantee and the Note Guarantees and as may be necessary to have such property or asset added to the Collateral and thereupon all provisions of this Indenture and relating to the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof relate to such after-acquired property or affect the Lien of this Indenture or the Collateral Documents if and asset to the same extent and with the same force and effect. If, after the Collateral is released pursuant in full as contemplated by the Intercreditor Agreement or, after it becomes effective, the Pari Passu Intercreditor Agreement, and, thereafter, the Issuer, the Co-Issuer, Intermediate Holdings or any Note Guarantor subsequently incurs First Lien Priority Indebtedness or Second Lien Priority Indebtedness that is secured by Liens on assets of the Issuer, the Co-Issuer, Intermediate Holdings or any Note Guarantor of the type constituting Collateral (other than Excluded Property), then the Issuers, Intermediate Holdings and the Note Guarantors shall be required to this Indenture secure the Notes, the Intermediate Holdings Guarantee and the Note Guarantees, as applicable, at such time by a Lien on the Collateral with the priority and terms substantially as set forth in the Intercreditor Agreement or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralPari Passu Intercreditor Agreement.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or Collateral securing the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes;
(2) in whole upon:
(A) a Legal Defeasance or Covenant Defeasance as set forth in Article 8 hereof; or
(B) the satisfaction and discharge of this Indenture as set forth in Section 12.0110.01 hereof;
(ii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company Issuer or any of its Subsidiaries Subsidiary Guarantor (other than to the Company Issuer or a another Subsidiary Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and or the Collateral Documents; Security Documents at the time of such sale, transfer or disposition (Bb) that is cash owned or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned acquired by a Subsidiary Guarantor that is 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 Subsidiary Guarantor as an Unrestricted Subsidiary) or (c) ceases to constitute Collateral in accordance with the terms of this Indenture and the Security Documents;
(v4) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding whole or in part, as applicable, in accordance with Section 9.02the provisions in Article 9;
(5) in part, providedin accordance with the applicable provisions of the Security Documents and the Intercreditor Agreement;
(6) with respect to any ABL Priority Collateral, upon the release of the Lien on such ABL Priority Collateral securing all ABL Obligations in accordance with the terms of all the ABL Documents (other than a discharge on payment thereof); or
(7) in whole or in part, as applicable, as to all or any part of the Collateral that has been taken by eminent domain, condemnation or other similar circumstances, provided that, in the case of any release in whole pursuant to clausesclauses (1), (i2) and (ii4) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees Subsidiary Guarantees, the Security Documents and the Collateral Documents Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonpaid in full.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) To the extent a proposed release of Collateral is not automatic and (vi) thereof)requires action by the Trustee or the Notes Collateral Agent, the Company Issuer and each Subsidiary Guarantor will furnish to the Trustee and the Notes Collateral Agent, prior to each proposed release of such Collateral pursuant to the Collateral Security Documents and this Indenture:
(i) , an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents relating to such release have been complied with including with. For the delivery to the Notes Collateral Agent avoidance of all documents required under this Section 11.06(c) doubt, it is agreed and understood that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an no Opinion of Counsel to the effect that shall be required in connection with any such accompanying documents constitute all documents required by release, except as specifically set forth in this Indenture and the Collateral Documents and where such release Opinion of Counsel is authorized or permitted by the Collateral Documents and this Indenture. required as a result of any other action taken in connection with such release.
(c) Upon compliance by the Company Issuer or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed (at the expense of the Issuer or the applicable Subsidiary Guarantors) to the Company, Issuer or the Guarantorssuch Subsidiary Guarantor, as the case may be, the released Collateral, Collateral and (b) upon written request by execute and deliver or file such termination or partial release statements and take such other actions as are reasonably necessary to effect the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateralforegoing.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (GameStop Corp.)
Release of Liens on the Collateral. (a) Subject to Liens on the Intercreditor Agreements, Collateral securing the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be automatically released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person circumstances (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:each a “Lien Release Event”):
(i) in wholeIn part, upon satisfaction and discharge as to any property or assets constituting Collateral, to enable the Issuer or its Restricted Subsidiaries to consummate the disposition of this Indenture as set forth in such property or assets to the extent not prohibited under Section 12.014.10;
(ii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed the case of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee with respect to the Notes in accordance with this IndentureSection 11.06, the property and assets of such Guarantor shall be released;
(iii) upon any such property or assets becoming Excluded Assets;
(iv) as permitted by the Intercreditor Agreements; or
(v) with as permitted by Section 9.02(f).
(b) The security interests in all Collateral securing the consent of Holders of 75% Notes will be automatically released upon:
(i) payment in aggregate principal amount full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Notes then outstanding and all other Obligations under this Indenture, the Guarantees and the Notes Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest and premium, if any, are paid (including pursuant to a redemption or repurchase of all Notes or a satisfaction and discharge of this Indenture in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and Article XII); or
(ii) abovea Legal Defeasance or Covenant Defeasance under this Indenture in accordance with Sections 8.02 and 8.03.
(c) In connection with a release of Collateral, all amounts owing only an Officer’s Certificate to the Notes Collateral Agent will be required and neither the Trustee nor the Notes Collateral Agent shall have any liability for releases given in reliance on such Officer’s Certificate, which shall also certify that the release of Collateral is authorized or permitted under the Indenture and the Notes Security Documents. The Trustee and the Notes Collateral Agent will promptly take such action and, without recourse, representation or warranty, execute any such documents as may be reasonably requested by the Issuer in connection with a release of Guarantee or Collateral. Any notice provided to the Trustee or Notes Collateral Agent in connection with a Lien Release Event or a Guarantee Release Event shall be deemed an authenticated demand from a debtor duly delivered under this IndentureSection 9-513(c) of the UCC, the Notes, the Guarantees and the Collateral Documents Issuer and the Guarantors shall have been paidthe rights provided by Section 9-509 of the UCC with respect to any such demand; and
(viprovided that the applicable time period set forth in Section 9-513(c) upon of the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonUCC shall be deemed to be three Business Days.
(cd) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), Upon the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release receipt of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such releasefrom the Issuer, including a statement to the effect that all conditions precedent provided for as described in this Indenture Section 10.10(c), if applicable, and the Collateral Documents to such any necessary or proper instruments of termination, satisfaction or release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted prepared by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable GuarantorIssuer, the Notes Collateral Agent will fileand/or the Trustee shall, at the Issuer’s expense, execute, deliver or authorize acknowledge such instruments or releases reasonably requested in writing by the filing of appropriate termination statements or other documents Issuer to terminate evidence the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not permitted to be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Notes Security Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralEqual Priority Intercreditor Agreement.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Pari Passu Intercreditor AgreementsAgreement and the ABL Intercreditor Agreement, the First Lien Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the First Lien Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01;
(ii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes ABL Intercreditor Agreements Agreement or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the First Lien Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the First Lien Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the First Lien Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the First Lien Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the First Lien Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the First Lien Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the First Lien Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the First Lien Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Cleveland-Cliffs Inc.)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets Collateral shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent automatically and without the any need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in wholewhole or in part, upon 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;
(ii) in whole upon:
(1) satisfaction and discharge of this Indenture as set forth in Section 12.01;8.1(a); or
(ii2) in whole, upon a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.02 or Section 8.03, as applicable8.1(b);
(iii) in part, as to any property constituting Collateral that (Ax) that is sold sold, transferred or otherwise disposed of by the Company or any of its Subsidiaries Subsidiary Guarantor (other than to the Company or a another Subsidiary Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and at the Collateral Documents; (B) that is cash time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Ey) that is owned or at any time becomes Excluded Propertyacquired by a Subsidiary Guarantor that has been released from its Subsidiary Guaranty in accordance with this Indenture, concurrently with the release of such Subsidiary Guaranty (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary);
(iv) pursuant to an amendment in accordance with Article IX;
(v) in whole as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding Subsidiary Guaranty in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid10.2; and
(vi) upon in part, in accordance with the incurrence by the Company or any Guarantor applicable provisions of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:the First Lien Intercreditor Agreement.
(ib) an Officer’s Certificate requesting such release, including a statement In connection with any termination or release of any Liens in all or any portion of the Collateral pursuant to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent or any of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release , the Trustee shall, or shall be in form reasonably satisfactory cause the Collateral Agent to, promptly execute, deliver or acknowledge all documents, instruments and releases that have been requested to release, reconvey to the Notes Collateral Agent and shall provide that Company and/or the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, such Collateral or otherwise give effect to, evidence or confirm such termination or release in accordance with the conditions precedent set forth above in connection with any release directions of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to and/or the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the GuarantorsSubsidiary Guarantor, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the such Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely The Trustee and each of the Holders each acknowledge and direct the Trustee and the Collateral Agent that a release of Collateral or a Lien in accordance with the terms of any Collateral Document and this Article XI shall not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture.
(d) Notwithstanding any provision to the contrary herein, as and when requested by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to authorize the filing of Uniform Commercial Code financing statement amendments or releases (which shall be prepared by the Company or such Subsidiary Guarantor) solely to the extent necessary to delete or release Liens on property or assets not required to be subject to a Lien under the Collateral Documents from the description of assets in delivering any previously filed financing statements. If requested in writing by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to execute such documents, instruments or statements reasonably requested of it (which shall be prepared by the Company or such Subsidiary Guarantor) and to take such other action as the Company may request to evidence or confirm that such property or assets not required to be subject to a certificate requesting Lien under the Collateral Documents described in the immediately preceding sentence has been released from the Liens of each of the Collateral Documents. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Company, any Subsidiary Guarantor or the Trustee.
(e) In no event shall the Trustee or Collateral Agent be obligated to execute or deliver any document evidencing any release or reconveyance without receipt of any collateralan Opinion of Counsel and Officers’ Certificate, each stating that such release complies with this Indenture, the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and the Collateral Documents.
Appears in 1 contract
Samples: Indenture (Reddy Ice Holdings Inc)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens Notes:
(i) in whole, upon payment in full of the principal of, together with accrued and security interests created by unpaid interest and premium, if any, on the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Notes and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing all other Obligations under this Indenture, the Notes, the Guarantees, Guarantees and the Collateral Security Documents under any one that are due and payable at or more prior to the time of the following circumstancessuch principal, together with accrued and such Liens on the following assets shall automaticallyunpaid interest and premiums, without requirement for consent or approval from the Holdersif any, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:is paid;
(iii) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Article12 hereof;
(iiiii) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle 8 hereof;
(iiiiv) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company Issuer or any of its Restricted Subsidiaries (other than to the Company Issuer or a Guarantor) in a transaction permitted by Section 3.02 4.10 and by the Collateral Security Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Security Documents; or (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes an Excluded PropertyProperty (as defined in the Security Documents) pursuant to a transaction permitted by this Indenture;
(ivv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;; and
(vvi) with the consent of Holders of 75% as described in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, Article 9 hereof. provided, that, in the case of any release in whole pursuant to clausesclauses (i), (iii) and (iiiii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and Guarantees, the Collateral Documents and the Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company Issuer and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral (and, to the extent required by the Trust Indenture Act, prior to the proposed release of any other Collateral) pursuant to the Collateral Security Documents and this Indenture:;
(i) an Officer’s Officers’ Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent Trustee of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents11.05(b);
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii) all documents required by this Indenture Indenture, the Security Documents and the Collateral DocumentsIntercreditor Agreements; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture Indenture, the Security Documents and the Collateral Documents Intercreditor Agreements and such release is authorized or permitted by the Collateral Security Documents and this Indenture. Upon compliance by the Company Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuer or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuer, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Security Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Security Documents if and to the extent the Collateral is released pursuant to this Indenture Indenture, the Security Documents or the Collateral Documents Intercreditor Agreements or upon the termination of this Indenture. Any person may rely on this (dSection 11.05(c) in delivering a certificate requesting release of any collateralCollateral.
Appears in 1 contract
Samples: Indenture (West Corp)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Notes and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article 12;
(ii3) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article 8;
(iii4) in whole or in part, as to any property constituting Collateral (A) that is sold or otherwise disposed in accordance with the applicable provisions of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture Intercreditor Agreement and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v5) with the consent of Holders of 75662⁄3% in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes);
(6) with respect to assets of a Subsidiary Guarantor upon release of such Subsidiary Guarantor from its Note Guarantee in accordance with Article 10;
(7) to enable the disposition of property or other assets that constitute Collateral to the extent not prohibited by Section 9.024.16; and
(8) in part, providedas to any particular property or asset included in the Collateral (but not all or substantially all of the Collateral) at such time as such property or asset no longer secures the Obligations under the Senior Credit Facility or any other First Lien Indebtedness, other than any release of Collateral in connection with any discharge in full of the Obligations under the Senior Credit Facility or such First Lien Indebtedness; provided that the aggregate Fair Market Value of Collateral released pursuant to this Section 11.07(a)(8) shall not exceed $50.0 million; provided that, in the case of any release in whole pursuant to clausesclauses (1), (i2), (3) and (ii4) aboveof this Section 11.07(a), all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and Note Guarantee, the Collateral Documents and the Intercreditor Agreement have been paid; and.
(vib) upon To the incurrence extent that the Lien on such property or asset is no longer required to be perfected under the Senior Credit Facility, (i) no actions in any non-U.S. jurisdiction or required by the Company or any Guarantor laws of any Permitted Lien on non-U.S. jurisdiction shall be required to be taken in any Collateral that is a purchase money Lien, non-U.S. jurisdiction to perfect or is a pre-existing Lien on property acquired after make enforceable any security interests in assets located or titled outside of the Issue Date where United States (including any foreign registered intellectual property) and (ii) to the terms of extent any such Lien prohibit other securing obligations under the Senior Credit Facility is no longer perfected because it is no longer required under the Senior Credit Facility to be perfected in any such non-U.S. jurisdiction, the Trustee and/or Notes Collateral Agent shall, at the written request of the Issuer, make such filings and take such actions as necessary or appropriate in, and/or under the laws of, such non-U.S. jurisdictions to ensure all corresponding Liens thereonsecuring the Notes and the Note Guarantees are similarly no longer perfected.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company The Issuer and each Guarantor will furnish to the Trustee and the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Section 11.07(a)(1), (2), (3), (5), (6) and (8) or pursuant to the Collateral Documents and this IndentureDocuments:
(i1) an Officer’s Certificate requesting any such release, including a statement filing or other action without recourse, warranty or representation of any kind (express or implied);
(2) an Officer’s Certificate and Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with; and
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);.
(iiid) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with for any release of Collateral (whether or not such compliance is required under this Section 11.06(c))as set forth above, and if required by this Indenture upon delivery by the Company Issuer or such Guarantor the Guarantors to the Notes Collateral Agent of Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, Issuer or the Guarantors, as the case may be, the released Collateral, Collateral and (b) upon written request take all other actions reasonably requested by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest Issuer in the released Collateralconnection therewith.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (DIEBOLD NIXDORF, Inc)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time with respect to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01;Article XII hereof; or
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, 8.2 hereof. provided, that, in the case of any release in whole pursuant to clauses, clauses (i1) and through (ii3) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees Collateral Documents and the Collateral Documents Indenture Subordination Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of First Priority Collateral, prior to the proposed release of any other Collateral pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii3) all documents required by this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIndenture Subordination Agreement; and
(iv4) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and Indenture, the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureIndenture Subordination Agreement. Upon compliance by the Company or the Guarantors, as the case may beCompany, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Indenture Subordination Agreement or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Pari Passu Intercreditor AgreementsAgreement and the ABL Intercreditor Agreement, the First Lien Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the First Lien Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01;
(ii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes ABL Intercreditor Agreements Agreement and the Pari Passu Intercreditor Agreement or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the First Lien Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the First Lien Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the First Lien Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the First Lien Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the First Lien Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the First Lien Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the First Lien Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the First Lien Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Cleveland-Cliffs Inc.)
Release of Liens on the Collateral. (a) Subject to Section 6.1 of the Intercreditor AgreementsAgreement, the Notes Collateral Agent shall not at any time release Liens on the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingSecurities:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.0110.1(a) hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle VIII hereof;
(iii4) in part, so long as such release is not prohibited by this Indenture or any of the Security Documents, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company Issuers or any of its their Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Security Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from of the Collateral Account for any one or more purposes permitted by Section 3.02; nature described in the proviso in the definition of “Asset Sale” and is subject to a disposition as therein provided, (C) that is ABL Collateral, pursuant to the terms owned or at any time acquired by a Subsidiary of the ABL Intercreditor Agreement; Issuers that has been released from its obligations under the Guaranty in accordance with this Indenture, concurrently with the release thereof, (D) that is Notes Collateral, shares of Capital Stock of a Subsidiary of the Issuers (other than INI) to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the terms Securities Act, due to the fact that such shares of such Subsidiary’s Capital Stock secures the Notes Intercreditor Agreements Securities, to file separate financial statements with the SEC (or any other governmental agency), or (E) that at any time becomes Excluded Property;otherwise in accordance with, and as expressly provided for under, this Indenture, including, without limitation, Article X, or the Security Documents; or
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v5) with the consent of Holders of 75% in aggregate 66⅔% or more of the outstanding principal amount of the Notes then outstanding in accordance with Section 9.02Securities, provided, thatunless such release involves all or substantially all of the Collateral, in which case such release will require the case consent of each Holder affected thereby (including with respect to any Conru/Xxxxxxxx Definitive Security, the consent of any release Conru/Xxxxxxxx Affiliate affected thereby) (including, without limitation, consents obtained in whole pursuant connection with a tender offer or exchange offer for, or purchase of, Securities). The Holders of Conru/Xxxxxxxx Definitive Securities shall be entitled to clauses, vote for purposes of this clause (i5) and (ii) above, all amounts owing prior to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor commencement of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonBankruptcy Event.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company Issuers and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Security Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii4) all documents required by TIA §314(d), this Indenture and the Collateral Security Documents; and
(iv5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureSecurity Documents. Upon compliance by the Company Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuers or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Senior Lien Collateral Agent shall promptly cause be authorized to be released release and reconveyed reconvey to the CompanyIssuers, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest unless otherwise specified in the released CollateralSecurity Documents.
(dc) The For purposes of the TIA, to the extent required, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Security Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Security Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Security Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets Collateral shall automaticallybe released with respect to the Securities and the Subsidiary Guarantors, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Securities;
(ii) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.018.1(a) hereof;
(iiiii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.1(b) hereof;
(iiiiv) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) Subsidiary Guarantors in a transaction permitted by Section 3.02 3.8 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account Accounts for any one or more purposes permitted by Section 3.023.8(a); (C) that is ABL with respect to Second-Priority Collateral, upon any release, sale or disposition (other than in connection with a cancellation or termination of the ABL Facility without a replacement thereof) of such Second-Priority Collateral pursuant to the terms of the ABL Intercreditor AgreementFacility resulting in the release of the Lien on such Collateral securing the ABL Facility, other than with respect to Trademark Collateral; or (D) that is Notes Collateralotherwise in accordance with, pursuant to and as expressly provided for under, this Indenture or the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded PropertyAgreement;
(ivv) in whole as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with this Indenture;; and
(vvi) with the consent of Holders of seventy five percent (75% %) in aggregate principal amount of the Notes then outstanding Securities (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Securities), provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) abovethis Section 11.6(a), all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the NotesSecurities, the Guarantees and Subsidiary Guarantees, the Collateral Documents and the Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)the release of Premises that constitute First-Priority Collateral, the Company and each Subsidiary Guarantor will shall furnish to the Notes Collateral AgentTrustee, prior to each proposed release of such First-Priority Collateral pursuant to the Collateral Documents and this Indenture:
, an Officers’ Certificate and an Opinion of Counsel as required under Section 12.2 (i) an Officer’s Certificate requesting such release, including a statement release and (ii) to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with.
(iic) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the its Subsidiary Guarantors, as the case may be, the released CollateralCollateral in accordance with the directions of the Company, and (b) upon written request by the Company or the applicable its Subsidiary Guarantor, as the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateralcase may be.
(d) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture.
(e) Notwithstanding any provision to the contrary herein, as and when requested by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver Uniform Commercial Code financing statement amendments or releases (which shall be prepared by the Company) solely to the extent necessary to delete Excluded Assets from the description of assets in any previously filed financing statements. Any person If requested in writing by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Company) and to take such other action as the Company may rely on this (d) request to evidence or confirm that Excluded Assets described in delivering a certificate requesting release the immediately preceding sentence has been released from the Liens of any collateraleach of the Collateral Agreements. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Trustee.
Appears in 1 contract
Samples: Indenture (Brunswick Corp)
Release of Liens on the Collateral. The Liens on the Collateral will be released with respect to the Notes:
(a) Subject to upon the Intercreditor Agreements, defeasance or discharge of the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly as provided in Article 8 or Article 10, in each case in accordance with the provisions terms of this Indenture and the applicable Collateral Documents.Indenture;
(b) Collateral will be released from upon an enforcement action pursuant to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more terms of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Group Intercreditor Deed;
(iic) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its the Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 4.10 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash otherwise in accordance with, and as expressly provided for under this Indenture; or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to no longer secures any obligations under the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements Existing Credit Facility or (E) that at any time becomes Excluded PropertyPari Passu Lien Obligations;
(ivd) that if the Collateral is owned by a Note Guarantor that is released from its Note Guarantee in accordance with this Indenture;; and
(ve) with the consent of Holders of at least seventy-five percent (75% %) in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indentureor purchase of, the Notes). To the extent required by this Indenture for the release of principal properties that constitute Collateral, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor Issuer will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of such Collateral pursuant to the Collateral Documents and this Indenture:
(i) , an Officer’s Certificate requesting such releaseCertificate, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to and any other documentation reasonably required by the effect that such accompanying documents constitute all documents Trustee as required by this Indenture Indenture. In addition, in connection with the incurrence of any Pari Passu Lien Obligations, the Company can request that all or part of the Liens on the Collateral with respect to the Notes be released under the then existing Collateral Documents if the Pari Passu Lien Obligations are to be secured on the Collateral under new collateral documents (the “Replacement Collateral Documents”); provided that the Security Trustee and the Trustee, for the benefit of the Holders, also enters into the Replacement Collateral Documents and such release is authorized or permitted by which provide for Liens on the Collateral which are equal, or substantially equal, to the Liens provided for the benefit of any Pari Passu Lien Obligations; and provided further that a board resolution be provided to the Trustee from any company granting any liens under any applicable Replacement Collateral Document certifying that, in the case of any company incorporated in England and Wales, it is not, and will not as a result of the incurrence of such Lien become unable to pay its debts within the meaning of section 123 of the Insolvency Xxx 0000 (or successor law) or, for all other companies, it is solvent under the laws of its jurisdiction of incorporation. The Holders authorize and direct the Security Trustee and the Trustee, upon request of the Company, to so release any Liens on the Collateral, as required, and to enter into any such Replacement Collateral Documents. The entering into any Replacement Collateral Documents may result in renewed hardening periods under applicable law in the relevant jurisdictions and this Indenturemay limit the recovery in an enforcement proceeding. Upon compliance by the Company Issuer or the Note Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied withas applicable, (a) the Trustee or the Notes Collateral Agent Security Trustee shall promptly as soon as reasonably practicable cause to be released and reconveyed to the CompanyIssuer, or the its Note Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Virgin Media Inc.)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release The Liens on the Collateral from securing the security interests created by obligations of the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, the Indenture and the Collateral Security Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent automatically and without the any need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon satisfaction release of a Guarantee (with respect to the Liens on the Collateral owned by and discharge of this Indenture as set forth in Section 12.01securing any Guarantor’s obligations under such Guarantee);
(ii) in whole, upon whole upon:
(1) satisfaction and discharge of the Indenture in accordance with Article Four of the Base Indenture; or
(2) a legal defeasance or covenant defeasance as set forth of the Indenture in Section 8.02 or Section 8.03, as applicableaccordance with Article Fourteen of the Base Indenture;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) whole upon payment in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent full of the interest sold or disposed principal of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateralpremium, pursuant to the terms if any, and interest on, all of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded PropertyOutstanding Notes;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) whole or in part, with the consent of the Holders of 75% in the requisite aggregate principal amount of the Outstanding Notes then outstanding in accordance with Section 9.02, provided, that, in 902 of the case of any release in whole pursuant to clauses, Indenture; or
(iv) and as permitted by Section 4.06(c) (ii) above, all amounts owing with respect to the Trustee and Liens on the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonrelated Replaceable Collateral).
(cb) For all circumstances in Section 11.06(b) (other than In connection with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed any termination or release of any Liens in all or any portion of the Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such releaseIndenture or any of the Security Documents, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release Agent and, if necessary, the Trustee shall, promptly execute, deliver or acknowledge all documents, instruments and releases that have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Company, any Guarantor Security Grantor or the Guarantorsany Non-Guarantor Security Grantor, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether to release, reconvey or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed otherwise return to the Company, such Guarantor Security Grantor or the Guarantorssuch Non-Guarantor Security Grantor, as the case may be, such Collateral or otherwise give effect to, evidence or confirm such termination or release in accordance with the released Collateraldirections of the Company, such Guarantor Security Grantor or such Non-Guarantor Security Grantor, as the case may be. Notwithstanding any provision to the contrary contained herein, as and (b) upon written request when requested by the Company Company, any Guarantor Security Grantor or the applicable Guarantorany Non-Guarantor Security Grantor, the Notes Trustee shall instruct the Collateral Agent will file, or to (i) authorize the filing of appropriate Uniform Commercial Code termination statements statements, amendments or releases, (ii) execute letter agreements terminating all securities or deposit account control agreements or other documents to terminate control agreements entered into by the security interest Company, any Guarantor Security Grantor or any Non-Guarantor Security Grantor and (iii) deliver any certificated securities and any other instruments or possessory collateral in the possession of the Collateral Agent, in each case, which shall be prepared by the Company, such Guarantor Security Grantor or such Non-Guarantor Security Grantor, solely to the extent necessary to delete or release (which shall include partial deletions and releases), as applicable, Liens on property or assets that are permitted to be so released Collateralor deleted pursuant to the terms of the Indenture or the Security Documents.
(dc) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Security Documents shall not be deemed to impair the security under this the Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the such Collateral is released pursuant to this the Indenture or the Collateral Security Documents or upon the termination of this the Indenture. Any person may rely on this (d) in delivering a certificate requesting release , and each of the Holders, by accepting any collateralNotes and the Guarantees thereof, acknowledges same.
Appears in 1 contract
Samples: First Supplemental Indenture (Sutherland Asset Management Corp)
Release of Liens on the Collateral. (a) Subject to Section 6.1 of the Intercreditor AgreementsAgreement, the Notes Collateral Agent shall not at any time release Liens on the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingSecurities:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.0110.1(a) hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle VIII hereof;
(iii4) in part, so long as such release is not prohibited by this Indenture or any of the Security Documents, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company Issuers or any of its their Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Security Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from of the Collateral Account for any one or more purposes permitted by Section 3.02; nature described in the proviso in the definition of “Asset Sale” and is subject to a disposition as therein provided, (C) that is ABL Collateral, pursuant to the terms owned or at any time acquired by a Subsidiary of the ABL Intercreditor Agreement; Issuers that has been released from its obligations under the Guaranty in accordance with this Indenture, concurrently with the release thereof, (D) that is Notes Collateral, shares of Capital Stock of a Subsidiary of the Issuers (other than INI) to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the terms Securities Act, due to the fact that such shares of such Subsidiary’s Capital Stock secures the Notes Intercreditor Agreements Securities, to file separate financial statements with the SEC (or any other governmental agency), or (E) that at any time becomes Excluded Property;otherwise in accordance with, and as expressly provided for under, this Indenture, including, without limitation, Article X, or the Security Documents; or
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v5) with the consent of Holders of 75% in aggregate 66⅔% or more of the outstanding principal amount of the Notes then outstanding in accordance with Section 9.02Securities, provided, thatunless such release involves all or substantially all of the Collateral, in which case such release will require the case consent of any release each Holder affected thereby (including, without limitation, consents obtained in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company connection with a tender offer or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lienexchange offer for, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonpurchase of, Securities).
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company Issuers and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Security Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii4) all documents required by TIA §314(d), this Indenture and the Collateral Security Documents; and
(iv5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureSecurity Documents. Upon compliance by the Company Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuers or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause be authorized to be released release and reconveyed reconvey to the CompanyIssuers, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest unless otherwise specified in the released CollateralSecurity Documents.
(dc) The For purposes of the TIA, to the extent required, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Security Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture Indenture, the Intercreditor Agreement, the Second Lien Intercreditor Agreement or the Collateral Security Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Security Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingSecurities:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.019.1(a) hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle VII hereof;
(iii4) in part, so long as such release is not prohibited by this Indenture or any of the Security Documents, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company Issuers or any of its their Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Security Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from of the Collateral Account for any one or more purposes permitted by Section 3.02; nature described in the proviso in the definition of “Asset Sale” and is subject to a disposition as therein provided, (C) that is ABL Collateral, pursuant to the terms owned or at any time acquired by a Subsidiary of the ABL Intercreditor Agreement; Issuers that has been released from its obligations under the Guaranty in accordance with this Indenture, concurrently with the release thereof, (D) that is Notes Collateral, shares of Capital Stock of a Subsidiary of the Issuers (other than INI) to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the terms Securities Act, due to the fact that such shares of such Subsidiary’s Capital Stock secures the Notes Intercreditor Agreements Securities, to file separate financial statements with the SEC (or any other governmental agency), or (E) that at any time becomes Excluded Property;otherwise in accordance with, and as expressly provided for under, this Indenture, including, without limitation, Article IX, or the Security Documents; or
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v5) with the consent of Holders of 75% in aggregate 66⅔% or more of the outstanding principal amount of the Notes then outstanding in accordance with Section 9.02Securities, provided, thatunless such release involves all or substantially all of the Collateral, in which case such release will require the case consent of any release each Holder affected thereby (including, without limitation, consents obtained in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company connection with a tender offer or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lienexchange offer for, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonpurchase of, Securities).
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company Issuers and each Guarantor will furnish to the Notes Trustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Security Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the such release is permitted by this Indenture and the Collateral Security Documents;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Required Holders and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii4) all documents required by TIA §314(d), this Indenture and the Collateral Security Documents; and
(iv5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureSecurity Documents. Upon compliance by the Company Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuers or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause be authorized to be released release and reconveyed reconvey to the CompanyIssuers, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest unless otherwise specified in the released CollateralSecurity Documents.
(dc) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Security Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Security Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Security Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (FRNK Technology Group)
Release of Liens on the Collateral. The Liens on the Collateral will be released with respect to the Notes:
(a) Subject to upon the Intercreditor Agreements, defeasance or discharge of the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly as provided in Article 8 or Article 10, in each case in accordance with the provisions terms of this Indenture and the applicable Collateral Documents.Indenture;
(b) Collateral will be released from upon an enforcement action pursuant to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more terms of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Group Intercreditor Deed;
(iic) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its the Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 4.10 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash otherwise in accordance with, and as expressly provided for under this Indenture; or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to no longer secures any obligations under the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements Existing Credit Facility or (E) that at any time becomes Excluded PropertyPari Passu Lien Obligations;
(ivd) that if the Collateral is owned by a Note Guarantor that is released from its Note Guarantee in accordance with this Indenture;
(ve) with the consent of Holders of at least seventy-five percent (75% %) in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indentureor purchase of, the Notes, the Guarantees and the Collateral Documents have been paid); and
(vif) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances as provided for in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)4.24. To the extent required by this Indenture for the release of principal properties that constitute Collateral, the Company and each Guarantor Issuer will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of such Collateral pursuant to the Collateral Documents and this Indenture:
(i) , an Officer’s Certificate requesting such releaseCertificate, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to and any other documentation reasonably required by the effect that such accompanying documents constitute all documents Trustee as required by this Indenture Indenture. In addition, in connection with the incurrence of any Pari Passu Lien Obligations, the Company can request that all or part of the Liens on the Collateral with respect to the Notes be released under the then existing Collateral Documents if the Pari Passu Lien Obligations are to be secured on the Collateral under new collateral documents (the “Replacement Collateral Documents”); provided that the Security Trustee and the Trustee, for the benefit of the Holders, also enters into the Replacement Collateral Documents and such release is authorized or permitted by which provide for Liens on the Collateral which are equal, or substantially equal, to the Liens provided for the benefit of any Pari Passu Lien Obligations; and provided further that a board resolution be provided to the Trustee from any company granting any liens under any applicable Replacement Collateral Document certifying that, in the case of any company incorporated in England and Wales, it is not, and will not as a result of the incurrence of such Lien become unable to pay its debts within the meaning of section 123 of the Insolvency Xxx 0000 (or successor law) or, for all other companies, it is solvent under the laws of its jurisdiction of incorporation. The Holders authorize and direct the Security Trustee and the Trustee, upon request of the Company, to so release any Liens on the Collateral, as required, and to enter into any such Replacement Collateral Documents. The entering into any Replacement Collateral Documents may result in renewed hardening periods under applicable law in the relevant jurisdictions and this Indenturemay limit the recovery in an enforcement proceeding. Upon compliance by the Company Issuer or the Note Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied withas applicable, (a) the Trustee or the Notes Collateral Agent Security Trustee shall promptly as soon as reasonably practicable cause to be released and reconveyed to the CompanyIssuer, or the its Note Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Virgin Media Inc.)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
subsections (b) and (c) of this Section 13.6, Collateral will may be released from the Liens Lien and security interests interest created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents, the Intercreditor Agreement or as provided hereby. The Upon the request of the Company pursuant to an Officers’ Certificate described in clause (b) below, the Company and the Subsidiary Guarantors will be entitled to releases a release of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the GuaranteesSecurities, and the Collateral Documents Trustee and the Trustee shall release the same from such Liens at the Company’s sole cost and expense, under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, premium and accrued and unpaid interest, if any, and any Unpaid Additional Interest Payments on the Securities and the satisfaction of all other obligations under the Indenture, the Collateral Documents, the Intercreditor Agreement and other relevant credit documents;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.018.1;
(ii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii3) in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) Subsidiary Guarantor in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from deposit accounts for any purpose permitted by this Indenture, the Collateral Account for any one Documents or more purposes permitted by Section 3.02the Intercreditor Agreement; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements owned or (E) that at any time becomes Excluded Property;
(iv) that is owned acquired by a Subsidiary Guarantor that is has been released from its Guarantee in accordance with this Indenture;, concurrently with release thereof; or (D) otherwise in accordance with, and as expressly provided for under, this Indenture and the Collateral Documents; or
(v4) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding pursuant to an amendment or waiver in accordance with Section 9.02Article IX of this Indenture, provided, that, in the case of any release in whole pursuant to clauses, clause (i) and (iia)(i) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the NotesSecurities, the Guarantees and Subsidiary Guarantees, the Collateral Documents and the Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the The Company and each Subsidiary Guarantor will furnish to the Notes Trustee and the Collateral AgentTrustee, no less than 30 days prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with; and
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii2) all documents required by TIA §314(d), this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and Indenture, the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureIntercreditor Agreement. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture, upon delivery by the Company or such Subsidiary Guarantor to the Notes Trustee and the Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent Trustee shall promptly cause to be released and reconveyed to the Company, or the Guarantorsrelevant Subsidiary Guarantor, as the case may be, the released Collateral, and (b) upon written request by the Collateral Trustee shall promptly execute and deliver to the Company or the applicable relevant Subsidiary Guarantor, as the Notes Collateral Agent will filecase may be, such instruments of release or authorize the filing of appropriate termination statements or reconveyance and other documents to terminate as the security interest in the released CollateralCompany or such Subsidiary Guarantor may request.
(dc) The At any time when a Default or Event of Default has occurred and is continuing and the maturity of the Securities has been accelerated (whether by declaration or otherwise) and the Trustee has delivered a notice of acceleration to the Collateral Trustee, no release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed pursuant to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents will be effective as against the Holders, except as otherwise provided in the Intercreditor Agreement.
(d) Notwithstanding anything to the contrary herein, the Company and its Subsidiaries shall not be required to comply with all or any portion of Section 314(d) of the TIA if they determine, in good faith based on advice of counsel, that under the terms of that section 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 TIA is inapplicable to the released Collateral.
(e) The release of any Collateral from the terms hereof and of the Collateral Documents or the release of, in whole or in part, the Liens created by the Collateral Documents, will not be deemed to impair the Lien on the Collateral in contravention of the provisions hereof if and to the extent the Collateral is or Liens are released pursuant to the applicable Collateral Documents and pursuant to the terms of this Article XIII. The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien strictly in accordance with the terms of the Collateral Documents and of this Article XIII will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture.
(f) The Company and the Subsidiary Guarantors may, among other things, without any release or consent by the Trustee, conduct ordinary course activities with respect to Collateral, including (i) selling or otherwise disposing of, in any transaction or series of related transactions, any property subject to the Lien of the Collateral Documents which has become worn out, defective or obsolete or not used or useful in the business, (ii) abandoning, terminating, cancelling, releasing or making alterations in or substitutions of any leases or contracts subject to the Lien of this Indenture or any of the Collateral Documents in the ordinary course of business, (iii) in the ordinary course of business, surrendering or upon modifying any franchise, license or permit subject to the termination Lien of this IndentureIndenture or any of the Collateral Documents which it may own or under which it may be operating, (iv) altering, repairing, replacing, changing the location or position of and adding to its structures, machinery, systems, equipment, fixtures and appurtenances in the ordinary course of business, (v) granting a license of any intellectual property in the ordinary course of business, (vi) selling, transferring or otherwise disposing of inventory in the ordinary course of business, (vii) collecting accounts receivable in the ordinary course of business or selling, liquidating, factoring or otherwise disposing of accounts receivable in the ordinary course of business, (viii) making cash payments (including for the repayment of indebtedness or interest) from cash that is at any time part of the Collateral in the ordinary course of business that are not otherwise prohibited by this Indenture and the Collateral Documents and (ix) abandoning any intellectual property which is no longer used or useful in the Company’s business. Any person may rely The Company shall deliver to the Trustee and the Collateral Trustee, within 30 calendar days following the end of each six-month period beginning on [•] and [•] of any year, an Officers’ Certificate to the effect that all releases and withdrawals during the preceding six-month period (or since the Issue Date, in the case of the first such certificate) pursuant to this (dSection 13.6(f) in delivering a certificate requesting which no release or consent of any collateralthe Trustee and the Collateral Trustee was obtained in the ordinary course of the Company’s and the Subsidiary Guarantors’ business were not prohibited by this Indenture.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or Collateral securing the Notes Collateral Agent will automatically and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in wholewhole or in part, upon 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;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Section 12.01;Article XII hereof; or
(iib) in whole, upon a legal defeasance Legal Defeasance or covenant defeasance Covenant Defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle VIII hereof;
(iii3) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company Issuer or any of its Subsidiaries Guarantor (other than to the Company Issuer or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and at the Collateral Documents; time of such sale, transfer or disposition or (Bb) that is cash or Net Proceeds withdrawn from the Collateral Account of any Asset Sale for any one or more purposes permitted by Section 3.02; 3.5;
(C4) in part, as to any property that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements owned or (E) that at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor that is has been released from its Guarantee in accordance with this Indenture, concurrently with the release of such Guarantee;
(v5) in part, as to any Collateral of a Guarantor that is designated as an Unrestricted Subsidiary in a transaction or other circumstance that complies with the provisions of this Indenture and other relevant provisions of any other Security Documents, at the time such Guarantor is designated as an Unrestricted Subsidiary;
(6) in part, in accordance with the applicable provisions of the Security Documents or with the consent of Holders of a majority in aggregate principal amount the outstanding Notes (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes); and
(7) with respect to all or substantially all of the Collateral, with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding Notes (including, without limitation, consents obtained in accordance connection with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company a tender offer or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lienexchange offer for, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereonpurchase of, Notes).
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company Issuer and each Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of such Collateral pursuant to the Collateral Security Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii4) all documents required by Section 314(d) of the TIA, this Indenture Indenture, the Security Documents and the Collateral DocumentsJunior Lien Intercreditor Agreement; and
(iv5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by Section 314(d) of the TIA, this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureSecurity Documents. Upon compliance by the Company Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company Issuer or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuer, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Security Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Security Documents if and to the extent the Collateral is released pursuant to this Indenture or and the Collateral Security Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Bankrate, Inc.)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time with respect to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Intermediate Holdings Guarantee and the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article 13;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article 8;
(iii4) in whole or in part, as to any property asset constituting Collateral (A) if all other Liens on that is sold asset securing the First Priority Lien Obligations, Pari Passu Secured Indebtedness and Junior Lien Collateral Indebtedness then secured by that asset (including all commitments thereunder) are released or will be released simultaneously therewith or (B) otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 accordance with, and by as expressly provided for under, the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with and this Indenture;
(v5) with the consent of Holders of 75% sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes then outstanding Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes;
(6) with respect to assets of Intermediate Holdings or a Note Guarantor upon release of Intermediate Holdings from its Intermediate Holdings Guarantee or such Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) to enable the disposition of property or other assets that constitute Collateral to the extent not prohibited by Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, 4.10.
(ib) The Issuer and (ii) above, all amounts owing each Note Guarantor will furnish to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Section 14.07(a)(1) through (7) or pursuant to the Collateral Documents and this IndentureDocuments:
(i1) an Officer’s Certificate requesting such release, including a statement ;
(2) an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) solely in the case of a release described in Section 14.07(a)(1) through (5), an Opinion of Counsel in accordance with Section 15.02(ii); and
(4) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);.
(iiic) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer, Intermediate Holdings or the Note Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture upon delivery by the Company Issuer or Intermediate Holdings or such Note Guarantor to the Notes Collateral Agent of Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuer, Intermediate Holdings or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and (b) upon written request take all other actions reasonably requested by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest Issuer in the released Collateralconnection therewith.
(d) The Notwithstanding the foregoing, if (x) the Liens securing the First Priority Lien Obligations, Pari Passu Secured Indebtedness and Junior Lien Collateral Indebtedness are released in connection with the repayment (including cash collateralization of letters of credit) of the First Priority Lien Obligations, Pari Passu Secured Indebtedness and Junior Lien Collateral Indebtedness in full and termination of the commitments thereunder and (y) at the time of such release of the Liens securing the First Priority Lien Obligations, Pari Passu Secured Indebtedness and Junior Lien Collateral Indebtedness, the Notes do not have Investment Grade Ratings from both Rating Agencies after giving effect to such release, the Liens on the Collateral securing the Notes will not be released, except to the extent the Collateral or any portion thereof was disposed of in order to repay the First Priority Lien Obligations, Pari Passu Secured Indebtedness and Junior Lien Collateral Indebtedness secured by the Collateral, and thereafter, the Trustee (acting at the direction of the holders of a majority of outstanding principal amount of Notes) will have the right to direct the Collateral Agent to exercise remedies and to take other actions with respect to the Collateral. From and after any such time when all the Liens securing the First Priority Lien Obligations, Pari Passu Secured Indebtedness and Junior Lien Collateral Indebtedness are released but the Liens on the Collateral securing the Notes remain in accordance existence, if the Issuer, Intermediate Holdings or any Note Guarantor acquires any property or asset constituting Collateral, it shall execute and deliver such security instruments, financing statements, mortgages, deeds of trust and certificates and opinions of counsel (which are expected to be in substantially the same form as those executed and delivered with respect to the terms First Priority Lien Obligations, Pari Passu Secured Indebtedness and Junior Lien Collateral Indebtedness immediately prior to such release, if any) and, with respect to Material Real Property, deliver such title insurance policies, certificates, opinions of counsel and surveys as required under the Section 14.06, as are required under this Indenture and the Collateral Documents to vest in the Collateral Agent a perfected security interest with the same priority as the other Collateral upon such property or asset as security for the Notes (subject to Permitted Liens), the Intermediate Holdings Guarantee and the Note Guarantees and as may be necessary to have such property or asset added to the Collateral and thereupon all provisions of the Indenture relating to the Collateral shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof relate to such after-acquired property or affect the Lien of this Indenture or the Collateral Documents if and asset to the same extent and with the same force and effect. If, after the Collateral is released pursuant in full as contemplated by the Intercreditor Agreements and, thereafter, the Issuer subsequently incurs First Priority Lien Obligations that are secured by Liens on assets of the Issuer, Intermediate Holdings or any Note Guarantor of the type constituting Collateral (other than Excluded Property), then the Issuer, Intermediate Holdings and the Note Guarantors shall be required to this Indenture or secure the Notes, the Intermediate Holdings Guarantee and the Note Guarantees, as applicable, at such time by a Lien on the Collateral on a junior basis to the First Priority Lien Obligations and on a senior basis to the Second Priority Lien Obligations (subject to Permitted Liens) to the same extent provided by the Collateral Documents and subject to an intercreditor agreement that provides the administrative agent, collateral agent or upon other representative under such new First Priority Lien Obligations substantially the termination of this Indenture. Any person may rely same rights and powers as afforded under the Intercreditor Agreements entered into on this (d) in delivering a certificate requesting release of any collateralthe Issue Date.
Appears in 1 contract
Samples: Indenture (Realogy Corp)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets Collateral shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent automatically and without the any need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in wholewhole or in part, upon 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;
(ii) in whole upon:
(1) satisfaction and discharge of this Indenture as set forth in Section 12.01;8.1(a); or
(ii2) in whole, upon a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.02 or Section 8.03, as applicable8.1(b);
(iii) in part, as to any property constituting Collateral that (Ax) that is sold sold, transferred or otherwise disposed of by the Company or any of its Subsidiaries Subsidiary Guarantor (other than to the Company or a another Subsidiary Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and at the Collateral Documents; (B) that is cash time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Ey) that is owned or at any time becomes Excluded Propertyacquired by a Subsidiary Guarantor that has been released from its Subsidiary Guaranty in accordance with this Indenture, concurrently with the release of such Subsidiary Guaranty (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary);
(iv) pursuant to an amendment in accordance with Article IX;
(v) in whole as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding Subsidiary Guaranty in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid10.2; and
(vi) upon in part, in accordance with the incurrence by the Company or any Guarantor applicable provisions of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:the Intercreditor Agreement.
(ib) an Officer’s Certificate requesting such release, including a statement In connection with any termination or release of any Liens in all or any portion of the Collateral pursuant to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent or any of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release , the Trustee shall, or shall be in form reasonably satisfactory cause the Collateral Agent to, promptly execute, deliver or acknowledge all documents, instruments and releases that have been requested to release, reconvey to the Notes Collateral Agent and shall provide that Company and/or the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, such Collateral or otherwise give effect to, evidence or confirm such termination or release in accordance with the conditions precedent set forth above in connection with any release directions of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to and/or the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the GuarantorsSubsidiary Guarantor, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the such Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely The Trustee and each of the Holders each acknowledge and direct the Trustee and the Collateral Agent that a release of Collateral or a Lien in accordance with the terms of any Collateral Document and this Article XI shall not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture.
(d) Notwithstanding any provision to the contrary herein, as and when requested by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to authorize the filing of Uniform Commercial Code financing statement amendments or releases (which shall be prepared by the Company or such Subsidiary Guarantor) solely to the extent necessary to delete or release Liens on property or assets not required to be subject to a Lien under the Collateral Documents from the description of assets in delivering any previously filed financing statements. If requested in writing by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to execute such documents, instruments or statements reasonably requested of it (which shall be prepared by the Company or such Subsidiary Guarantor) and to take such other action as the Company may request to evidence or confirm that such property or assets not required to be subject to a certificate requesting Lien under the Collateral Documents described in the immediately preceding sentence has been released from the Liens of each of the Collateral Documents. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Company, any Subsidiary Guarantor or the Trustee.
(e) In no event shall the Trustee or Collateral Agent be obligated to execute or deliver any document evidencing any release or reconveyance without receipt of any collateralan Opinion of Counsel and Officers’ Certificate, each stating that such release complies with this Indenture, the Intercreditor Agreement and the Collateral Documents.
Appears in 1 contract
Samples: Indenture (Reddy Ice Holdings Inc)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Securities and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including additional interest, and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Section 12.018.1(a);
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article VIII;
(iii4) in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or cash withdrawn from deposit accounts for any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction purpose permitted by Section 3.02 and by this Indenture, the Collateral DocumentsDocuments or the Intercreditor Agreement, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) if all other Liens on that is cash asset securing the Credit Agreement Obligations, Senior Indebtedness and any Pari Passu Secured Indebtedness then secured by that asset (including all commitments thereunder) are released or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee otherwise in accordance with with, and as expressly provided for under, this Indenture;
(v5) with the consent of Holders the Initial Holder or holders of 75% sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, thatSecurities (or, in the case of any a release of all or substantially all Collateral, each holder of the Securities affected thereby), including, without limitation, consents obtained in whole pursuant to clausesconnection with a tender offer or exchange offer for, (i) and (ii) aboveor purchase of, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paidSecurities; and
(vi6) with respect to assets of a Note Guarantor upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms release of such Lien prohibit other Liens thereonNote Guarantor from its Note Guarantee as set forth under Article XI above.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the The Company and each Note Guarantor will furnish to the Notes Initial Holder or the Trustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to Section 11.06(a)(1) through (6) or pursuant to the Collateral Documents and this IndentureDocuments:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Initial Holder or the Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii3) all documents required by this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement; and
(iv4) an Opinion of Counsel to the effect that such release and other accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by Documents, the Collateral Documents Intercreditor Agreement and this Indenture. Upon compliance by the Company or the Note Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture upon delivery by the Company or such Note Guarantor to the Notes Collateral Agent of Initial Holder or the Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Initial Holder, the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and (b) upon written request by the Trustee and Collateral Agent shall promptly execute and deliver to the Company or the applicable relevant Guarantor, as the Notes Collateral Agent will filecase may be, such instruments of release or authorize the filing of appropriate termination statements or reconveyance and other documents to terminate as the security interest in the released CollateralCompany or such Guarantor may request.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Libbey Inc)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time with respect to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Intermediate Holdings Guarantee and the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article 13;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article 8;
(iii4) in whole or in part, as to any property asset constituting Collateral (A) if all other Liens on that is sold asset securing First Lien Priority Indebtedness, other First Lien Junior Priority Indebtedness and Junior Lien Collateral Indebtedness then secured by that asset (including all commitments thereunder) are released or will be released simultaneously therewith or (B) otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 accordance with, and by as expressly provided for under, the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with and this Indenture;
(v5) with the consent of Holders of 75% sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes then outstanding Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes;
(6) with respect to assets of Intermediate Holdings or a Note Guarantor upon release of Intermediate Holdings from its Intermediate Holdings Guarantee or such Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) to enable the disposition of property or other assets that constitute Collateral to the extent not prohibited by Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, 4.10.
(ib) The Issuer and (ii) above, all amounts owing each Note Guarantor will furnish to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Section 14.07(a)(1) through (7) or pursuant to the Collateral Documents and this IndentureDocuments:
(i1) an Officer’s Certificate requesting such release, including a statement ;
(2) an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) solely in the case of a release described in Section 14.07(a)(1) through (5), an Opinion of Counsel in accordance with Section 15.02(ii); and
(4) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);.
(iiic) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer, Intermediate Holdings or the Note Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture upon delivery by the Company Issuer or Intermediate Holdings or such Note Guarantor to the Notes Collateral Agent of Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuer, Intermediate Holdings or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and (b) upon written request take all other actions reasonably requested by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest Issuer in the released Collateralconnection therewith.
(d) The Notwithstanding the foregoing, if (x) the Liens securing the First Lien Priority Indebtedness, other First Lien Junior Priority Indebtedness and Junior Lien Collateral Indebtedness are released in connection with the repayment (including cash collateralization of letters of credit) of the First Lien Priority Indebtedness, other First Lien Junior Priority Indebtedness and Junior Lien Collateral Indebtedness in full and termination of the commitments thereunder and (y) at the time of such release of the Liens securing the First Lien Priority Indebtedness, other First Lien Junior Priority Indebtedness and Junior Lien Collateral Indebtedness, the Notes do not have Investment Grade Ratings from both Rating Agencies after giving effect to such release, the Liens on the Collateral securing the Notes will not be released, except to the extent the Collateral or any portion thereof was disposed of in order to repay the First Lien Priority Indebtedness, other First Lien Junior Priority Indebtedness and Junior Lien Collateral Indebtedness secured by the Collateral, and thereafter, the Trustee (acting at the direction of the holders of a majority of outstanding principal amount of Notes) will have the right to direct the Collateral Agent to exercise remedies and to take other actions with respect to the Collateral subject to the provisions of the Intercreditor Agreements. From and after any such time when all the Liens securing the First Lien Priority Indebtedness, other First Lien Junior Priority Indebtedness and Junior Lien Collateral Indebtedness are released but the Liens on the Collateral securing the Notes remain in accordance existence, if the Issuer, Intermediate Holdings or any Note Guarantor acquires any property or asset constituting Collateral, it shall execute and deliver such security instruments, financing statements, mortgages, deeds of trust and certificates and opinions of counsel (which are expected to be in substantially the same form as those executed and delivered with respect to the terms First Lien Priority Indebtedness, First Lien Junior Priority Indebtedness and Junior Lien Collateral Indebtedness immediately prior to such release, if any) and, with respect to Material Real Property, deliver such title insurance policies, certificates, opinions of counsel and surveys as required under the Section 14.06, as are required under this Indenture and the Collateral Documents to vest in the Collateral Agent a perfected security interest with the same priority as the other Collateral upon such property or asset as security for the Notes (subject to Permitted Liens), the Intermediate Holdings Guarantee and the Note Guarantees and as may be necessary to have such property or asset added to the Collateral and thereupon all provisions of the Indenture relating to the Collateral shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof relate to such after-acquired property or affect the Lien of this Indenture or the Collateral Documents if and asset to the same extent and with the same force and effect. If, after the Collateral is released pursuant in full as contemplated by the Intercreditor Agreements and, thereafter, the Issuer subsequently incurs First Lien Priority Indebtedness or First Lien Junior Priority Indebtedness that is secured by Liens on assets of the Issuer, Intermediate Holdings or any Note Guarantor of the type constituting Collateral (other than Excluded Property), then the Issuer, Intermediate Holdings and the Note Guarantors shall be required to this Indenture or secure the Notes, the Intermediate Holdings Guarantee and the Note Guarantees, as applicable, at such time by a Lien on the Collateral with the priority set forth in the Intercreditor Agreements, to the same extent provided by the Collateral Documents and subject to an intercreditor agreement that provides the administrative agent, collateral agent or upon other representative under such new First Lien Priority Indebtedness or First Lien Junior Priority Indebtedness substantially the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralsame rights and powers as afforded under the Intercreditor Agreements.
Appears in 1 contract
Samples: Indenture (Domus Holdings Corp)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingSecurities:
(i) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Securities;
(ii) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.018.1(a) hereof;
(iiiii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.1(b) hereof;
(iiiiv) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 3.7 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account Accounts for any one or more purposes permitted by subsection (a) of Section 3.023.7 or for any other expenditures not prohibited by this Indenture; (C) that is with respect to ABL Collateral, upon any release, sale or disposition (other than in connection with a cancellation or termination of the ABL Credit Facility) of any ABL Collateral pursuant to the terms of the ABL Intercreditor AgreementCredit Facility resulting in the release of the Lien on such Collateral securing the ABL Credit Facility; or (D) that is Notes Collateralotherwise in accordance with, pursuant to and as expressly provided for under, this Indenture or the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded PropertyAgreements;
(ivv) that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with this Indenture;; and
(vvi) with the consent of Holders of 75% sixty six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes then outstanding Securities (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Securities), provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) abovethis Section 11.6(a), all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the NotesSecurities, the Guarantees and Subsidiary Guarantees, the Collateral Documents and the Intercreditor Agreements have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)the release of real properties that have a fair market value of $10.0 million or more that constitute Non-ABL Collateral, the Company and each Subsidiary Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of such Non-ABL Collateral pursuant to the Collateral Documents and this Indenture:
Indenture an Officers’ Certificate (i) an Officer’s Certificate requesting such release, including a statement release and (ii) to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with.
(iic) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the its Subsidiary Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Non-ABL Collateral.
(d) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreements or upon the termination of this Indenture.
(e) Notwithstanding any provision to the contrary herein, as and when requested by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver Uniform Commercial Code financing statement amendments or releases solely to the extent necessary to delete Excluded Property from the description of assets in any previously filed financing statements. Any person If requested in writing by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements and to take such other action as the Company may rely on this (d) request to evidence or confirm that Excluded Property described in delivering a certificate requesting release the immediately preceding sentence has been released from the Liens of any collateraleach of the Collateral Agreements. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Trustee.
Appears in 1 contract
Samples: Indenture (Smithfield Foods Inc)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingSecurities:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest (including Additional Interest, if any), premium, if any, and Additional Amounts, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.018.1(a) hereof;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.1(b) hereof;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by 3.5 or the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.023.5(a); (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; nature described in clause (3), clause (4), clause (8), clause (9), clause (10) or clause (11) of the proviso in the definition of “Asset Disposition,” and is subject to a disposition as therein provided, (D) that is Notes Collateralconstitute Excess Collateral Proceeds that remain unexpended after the conclusion of a Collateral Disposition Offer conducted in accordance with this Indenture, pursuant to the terms of the Notes Intercreditor Agreements or (E) that is owned or at any time becomes Excluded Property;
(iv) that is owned acquired by a Guarantor Subsidiary of the Company that is has been released from its Subsidiary Guarantee in accordance with this Indenture;, concurrently with the release thereof, (F) that is Capital Stock of a Subsidiary of the Company to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 or Rule 3-10 of Regulation S-X under the Securities Act, due to the fact that such Subsidiary’s Capital Stock secures the Securities, to file separate financial statements with the SEC (or any other governmental agency) or (G) otherwise in accordance with, and as expressly provided for under, this Indenture, including, without limitation, Article X; and
(v5) with the consent of Holders of 75% each Holder affected thereby (including, without limitation, consents obtained in aggregate principal amount of the Notes then outstanding in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Securities); provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) abovethis Section 11.6(a), all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the NotesSecurities, the Guarantees and Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Subsidiary Guarantor will furnish to the Notes Collateral AgentTrustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement ;
(2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii3) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii4) all documents required by TIA §314(d), this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement; and
(iv5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and Indenture, the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this IndentureIntercreditor Agreement. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Subsidiary Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Subsidiary Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The For purposes of the TIA, the release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Coastal Paper CO)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Securities and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including additional interest, and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Section 12.018.1(a);
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article VIII;
(iii4) in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or cash withdrawn from deposit accounts for any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction purpose permitted by Section 3.02 and by this Indenture, the Collateral DocumentsDocuments or the Intercreditor Agreement, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) if all other Liens on that is cash asset securing the Credit Agreement Obligations and any Pari Passu Secured Indebtedness then secured by that asset (including all commitments thereunder) are released or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee otherwise in accordance with with, and as expressly provided for under, this Indenture;
(v5) with the consent of Holders holders of 75% sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, thatSecurities (or, in the case of any a release of all or substantially all Collateral, each holder of the Securities affected thereby), including, without limitation, consents obtained in whole pursuant connection with a tender offer or exchange offer for, or purchase of, Securities; and
(6) with respect to clauses, assets of a Note Guarantor upon release of such Note Guarantor from its Note Guarantee as set forth under Article X above.
(ib) The Company and (ii) above, all amounts owing each Note Guarantor will furnish to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Section 11.06(a)(1) through (6) or pursuant to the Collateral Documents and this IndentureDocuments:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Trustee and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii3) all documents required by this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement; and
(iv4) an Opinion of Counsel to the effect that such release and other accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by Documents, the Collateral Documents Intercreditor Agreement and this Indenture. Upon compliance by the Company or the Note Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture upon delivery by the Company or such Note Guarantor to the Notes Collateral Agent of Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and (b) upon written request by the Trustee and Collateral Agent shall promptly execute and deliver to the Company or the applicable relevant Guarantor, as the Notes Collateral Agent will filecase may be, such instruments of release or authorize the filing of appropriate termination statements or reconveyance and other documents to terminate as the security interest in the released CollateralCompany or such Guarantor may request.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Libbey Inc)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Securities and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Subsidiary Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon payment in full of the principal of, accrued and unpaid interest, including Additional Interest, and premium, if any, on the Securities;
(ii) in whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Section 12.018.1(a);
(iiiii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableArticle VIII;
(iiiiv) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and 3.5 or by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds Available Cash withdrawn from the a Collateral Account for any one or more purposes permitted by Section 3.023.5(a); (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; nature described in clauses (1), (4), (5), (7), (8), (10), (11) or (16) of the proviso in the definition of “Asset Disposition,” and is subject to a disposition as therein provided, (D) that is Notes Collateral, pursuant to the terms owned or at any time acquired by a Subsidiary of the Notes Intercreditor Agreements or Company that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release thereof, (E) that at is Capital Stock of a Subsidiary of the Company to the extent necessary for such Subsidiary not to be subject to any time becomes Excluded Property;
requirement pursuant to Rule 3-16 or Rule 3-10 of Regulation S-X under the Securities Act, due to the fact that such Subsidiary’s Capital Stock secures the Securities, to file separate financial statements with the SEC (ivor any other governmental agency) that is owned by a Guarantor that is released from its Guarantee or (F) otherwise in accordance with with, and as expressly provided for under, this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount each holder of the Notes then outstanding Securities affected thereby (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of, Securities); and
(vi) with respect to the Newport Beach Property and any mortgage thereon, at the time any Permitted Investment is made with such Newport Beach Property; provided that the Company or the applicable Restricted Subsidiary shall execute and deliver such mortgages, deeds of trust, security instruments, financing statements, certificates and opinions of counsel as may be necessary to vest in the Collateral Agent a perfected security interest, subject only to Permitted Liens, in any consideration received by the Company or its Restricted Subsidiaries in connection with such Permitted Investment and to have such after-acquired property added to the Collateral, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such after-acquired property to the same extent and with the same force and effect; provided, that, in the case of any release in whole pursuant to clauses, clauses (i) and through (iiv) above, all amounts then owing to the Trustee and the Notes Collateral Agent under this Indenture, the NotesSecurities, the Guarantees Subsidiary Guarantees, the Registration Rights Agreement and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent applicable, the Company and each Subsidiary Guarantor will furnish to the Notes Trustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Officers’ Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent Opinion of all documents Counsel as required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;Indenture; and
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this §314(d) of the Trust Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by Act, the Collateral Documents and this Indenture. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the its Subsidiary Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or shall take such other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral actions and execute and deliver such other instruments as may be requested in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralDocuments.
Appears in 1 contract
Samples: Indenture (Conexant Systems Inc)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company Issuer and the Guarantors will be are entitled to the releases of property and other assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents Notes under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in wholeIn part, upon satisfaction and discharge as to any property or assets constituting Collateral, to enable the Issuer to consummate the disposition of this Indenture as set forth in such property or assets to the extent not prohibited under Section 12.014.11;
(ii) in whole, upon the case of a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Subsidiary Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of respect to the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture10.06, the Notes, release of the Guarantees property and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms assets of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent)Subsidiary Guarantor;
(iii) all documents required as permitted by this Indenture and the Collateral DocumentsIntercreditor Agreement, if any; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or as permitted by the fifth paragraph of Section 9.02.
(b) The security interests in all Collateral Documents securing the Notes will be released upon:
(i) payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Notes and all other Obligations under this Indenture. Upon compliance by , the Company Guarantees and the Notes Security Documents that are due and payable at or prior to the Guarantorstime such principal, as the case may betogether with accrued and unpaid interest and premium, if any, are paid (including pursuant to a satisfaction and discharge of this Indenture in accordance with the conditions precedent set forth above in Section 11.01); or
(ii) a Legal Defeasance or Covenant Defeasance under this Indenture.
(c) In connection with any a release of Collateral (whether or not such compliance is required under this Section 11.06(c))Collateral, and upon delivery by the Company or such Guarantor only an Officer’s Certificate to the Trustee and Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) will be required and neither the Trustee or nor the Notes Collateral Agent shall promptly cause have any liability for release given in reliance on such Officer’s Certificate. Upon receipt of such Officer’s Certificate stating that all conditions precedent under this Indenture, the Notes Security Documents, the Intercreditor Agreement, if any, and any Junior Lien Intercreditor Agreement, as applicable, to be released such release have been met and reconveyed that it is proper for the Notes Collateral Agent or the Trustee, as applicable, to the Companyexecute and deliver, or authorize the Guarantorsfiling of, as the case may beapplicable, the released documents or instruments prepared by or on behalf of the Issuer to evidence the release of Collateral, and (b) upon the Issuer’s written request by the Company or the applicable Guarantorrequest, the Notes Collateral Agent will fileor the Trustee, as applicable, shall, at the Issuer’s expense, without recourse, representation or warranty, execute and deliver or authorize the filing of, as applicable, such documents or instruments reasonably requested by the Issuer in order to evidence the release of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Notes and the Collateral Documents. The Company related Guarantees, as applicable:
(1) in part, as to any property or assets constituting Collateral, to enable the disposition of such property or assets (to a Person that is not the Issuer or a Guarantor) to the extent permitted under Section 4.06;
(2) in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the Term Loan Credit Agreement and any other Parity Lien Indebtedness other than by reason of payment under or the Guarantors will be entitled to releases termination or repayment of the Term Loan Credit Agreement or such other Parity Lien Indebtedness, the release of the property and assets included of such Guarantor or a discharge or release by or as a result of payment in connection with the enforcement of remedies under such guarantee or direct obligation, but only if the Liens on the Collateral from of such Guarantor are also substantially concurrently released pursuant to the Liens terms of this Indenture;
(3) such property or assets becoming an Excluded Asset, Excluded Equity Interests or an asset owned by an Excluded Subsidiary;
(4) as to the assets owned by such Excluded Subsidiary, upon any Subsidiary Guarantor becoming an Excluded Subsidiary;
(5) any Securitization Assets becoming subject to a Receivables Financing to the extent required by the terms of such Receivables Financing;
(6) as required pursuant to the terms of any Intercreditor Agreement; and
(7) as contemplated by Article IX. The security interest in all Collateral securing the Notes also will be released upon (i) payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Notes and all other Obligations under this Indenture, the Notes, the Guarantees, Guarantees and the Collateral Security Documents under any one that are due and payable at or more of prior to the following circumstancestime such principal, together with accrued and such Liens on the following assets shall automaticallyunpaid interest and premium, without requirement for consent or approval from the Holdersif any, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person are paid (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon including pursuant to a satisfaction and discharge of this Indenture as set forth in Section 12.01;
pursuant to Article VIII or (ii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;Article VIII.
(iiib) in part, as to any property constituting Collateral (A) that is sold The Issuer or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a applicable Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing will furnish to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Sections 13.08(a)(1) through (6) or pursuant to the Collateral Documents and this IndentureSecurity Documents:
(i1) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Security Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with; and
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Trustee or the Collateral Agent);.
(iiic) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company Issuer or the Guarantorsany Guarantor, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture upon delivery by the Company Issuer or such Guarantor to the Notes Collateral Agent Trustee of an Opinion of Counsel Officer’s Certificate to the effect that such conditions precedent have been complied with, (a) the Trustee or shall direct the Notes Collateral Agent shall to promptly cause to be released and reconveyed to the Company, Issuer or the Guarantorsrelevant Guarantor, as the case may be, the released Collateral, and (b) upon written request take all other actions reasonably requested by the Company Issuer or such Guarantor in connection therewith, at the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released CollateralIssuer’s expense.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Advantage Solutions Inc.)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company Issuer and the Guarantors will be are entitled to the releases of property and other assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, Notes and the related Note Guarantees, and the Collateral Documents as applicable, under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i1) in whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, such series of Notes and all other related Obligations under this Indenture, the Note Guarantees and the First Lien Notes Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest and premium, if any, are paid;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01accordance with Article IX;
(ii3) in whole, upon a legal defeasance or covenant defeasance with respect to such series as set forth in Section 8.02 or Section 8.03, as applicableunder Article IX;
(iii4) in whole or in part, as to any asset constituting Collateral, in accordance with, and as expressly provided for under, the First Lien Notes Security Documents and this Indenture;
(5) with the consent of Holders of at least 662⁄3% in aggregate principal amount of such series of Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, such series of Notes as provided under Section 8.02;
(6) as to the property and assets of a Subsidiary Guarantor that is released from its Note Guarantee in accordance with Section 10.03;
(7) in part, as to any property or assets constituting Collateral (A) Collateral, to enable the Issuer and/or Guarantors to consummate the disposition of such property or other assets to a Person that is sold or otherwise disposed of by not the Company or any of its Subsidiaries (other than to the Company Issuer or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, Guarantor to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property4.08;
(iv) 8) as to any property or assets that is owned by a Guarantor that is released from its Guarantee in accordance with this Indentureare Excluded Assets;
(v9) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery enforcement action taken by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, Agents (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest defined in the released Collateral.
(dFirst Lien and Third Lien Intercreditor Agreement) The release of any Collateral in accordance with the terms of the First Lien and Third Lien Intercreditor Agreement; and
(10) as described under Article VIII hereof.
(b) [Reserved].
(c) If required by this Indenture, upon delivery by the Issuer or such Guarantor to the Trustee of a form of release accompanied by an Officer’s Certificate that such release is permitted under the terms of the Indenture and the Collateral Documents shall not be deemed to impair First Lien Notes Security Documents, as applicable, the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or Trustee and the Collateral Documents if and Agent shall execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the extent the release of any Collateral is permitted to be released pursuant to this Indenture or the First Lien Notes Security Documents and shall do or cause to be done (at the Issuer’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither the Trustee nor the Collateral Documents Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or upon in any First Lien Notes Security Document to the termination contrary, the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateralrelease, satisfaction or termination, unless and until it receives such Officer’s Certificate.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company Issuer and the Guarantors will be are entitled to the releases of property and other assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents Notes under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in wholeIn part, upon satisfaction and discharge as to any property or assets constituting Collateral, to enable the Issuer to consummate the disposition of this Indenture as set forth in such property or assets to the extent not prohibited under Section 12.014.11;
(ii) in whole, upon the case of a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Subsidiary Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of respect to the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture10.06, the Notes, release of the Guarantees property and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms assets of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent)Subsidiary Guarantor;
(iii) all documents required as permitted by this Indenture and the Collateral DocumentsIntercreditor Agreement, if any; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or as permitted by the fifth paragraph of Section 9.02.
(b) The security interests in all Collateral Documents securing the Notes will be released upon:
(i) payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Notes and all other Obligations under this Indenture. Upon compliance by , the Company Guarantees and the Security Documents that are due and payable at or prior to the Guarantorstime such principal, as the case may betogether with accrued and unpaid interest and premium, if any, are paid (including pursuant to a satisfaction and discharge of this Indenture in accordance with the conditions precedent set forth above in Section 11.01); or
(ii) a Legal Defeasance or Covenant Defeasance under this Indenture.
(c) In connection with any a release of Collateral (whether or not such compliance is required under this Section 11.06(c))Collateral, and upon delivery by the Company or such Guarantor only an Officer’s Certificate to the Notes Trustee and First Lien Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) will be required and neither the Trustee or nor the Notes First Lien Collateral Agent shall promptly cause have any liability for release given in reliance on such Officer’s Certificate. Upon receipt of such Officer’s Certificate stating that all conditions precedent under this Indenture, the Security Documents and the Intercreditor Agreement, as applicable, to be released such release have been met and reconveyed to that it is proper for the Company, First Lien Collateral Agent or the GuarantorsTrustee, as the case may beapplicable, the released Collateral, to execute and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will filedeliver, or authorize the filing of, as applicable, the documents or instruments prepared by or on behalf of appropriate termination statements the Issuer to evidence the release of Collateral, and upon the Issuer’s written request, the First Lien Collateral Agent or other the Trustee, as applicable, shall, at the Issuer’s expense, without recourse, representation or warranty, execute and deliver or authorize the filing of, as applicable, such documents or instruments reasonably requested by the Issuer in order to terminate evidence the security interest in the released release of Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company Issuer and the Guarantors will be are entitled to the releases of property and other assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents Notes under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in wholeIn part, upon satisfaction and discharge as to any property or assets constituting Collateral, to enable the Issuer to consummate the disposition of this Indenture as set forth in such property or assets to the extent not prohibited under Section 12.014.11;
(ii) in whole, upon the case of a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Subsidiary Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of respect to the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture10.06, the Notes, release of the Guarantees property and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms assets of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent)Subsidiary Guarantor;
(iii) all documents required as permitted by this Indenture and the Collateral DocumentsIntercreditor Agreement, if any; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or as permitted by the fifth paragraph of Section 9.02.
(b) The security interests in all Collateral Documents securing the Notes will be released upon:
(i) payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Notes and all other Obligations under this Indenture. Upon compliance by , the Company Guarantees and the Security Documents that are due and payable at or prior to the Guarantorstime such principal, as the case may betogether with accrued and unpaid interest and premium, if any, are paid (including pursuant to a satisfaction and discharge of this Indenture in accordance with the conditions precedent set forth above in Section 11.01); or
(ii) a Legal Defeasance or Covenant Defeasance under this Indenture.
(c) In connection with any a release of Collateral (whether or not such compliance is required under this Section 11.06(c))Collateral, and upon delivery by the Company or such Guarantor only an Officer’s Certificate to the Notes Trustee and Second Lien Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) will be required and neither the Trustee or nor the Notes Second Lien Collateral Agent shall promptly cause have any liability for release given in reliance on such Officer’s Certificate. Upon receipt of such Officer’s Certificate stating that all conditions precedent under this Indenture, the Security Documents and the Intercreditor Agreement, as applicable, to be released such release have been met and reconveyed to that it is proper for the Company, Second Lien Collateral Agent or the GuarantorsTrustee, as the case may beapplicable, the released Collateral, to execute and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will filedeliver, or authorize the filing of, as applicable, the documents or instruments prepared by or on behalf of appropriate termination statements the Issuer to evidence the release of Collateral, and upon the Issuer’s written request, the Second Lien Collateral Agent or other the Trustee, as applicable, shall, at the Issuer’s expense, without recourse, representation or warranty, execute and deliver or authorize the filing of, as applicable, such documents or instruments reasonably requested by the Issuer in order to terminate evidence the security interest in the released release of Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Junior First Lien Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Junior First Lien Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01;
(ii) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable;
(iii) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Junior First Lien Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(i) an Officer’s Certificate requesting such release, including a statement to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Junior First Lien Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release shall be in form reasonably satisfactory to the Junior First Lien Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Junior First Lien Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to the Junior First Lien Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Junior First Lien Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantors, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Junior First Lien Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets Collateral shall automaticallybe released with respect to the Securities and the Subsidiary Guarantees, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Section 12.01Indenture;
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicable8.1(b) hereof;
(iii4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Subsidiaries (other than to the Company or a Guarantor) Subsidiary Guarantors in a transaction permitted by Section 3.02 3.7 and by the Collateral Documents, Documents (to the extent of the interest sold or disposed of, ) or otherwise not prohibited permitted by this Indenture and the Collateral Documents; (B) that is cash or Net Proceeds Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.023.7(a) or for any other expenditures not prohibited by the Indenture; (C) that is ABL Collateralupon any release, sale or disposition (other than in connection with a cancellation or termination of the Credit Agreement without a replacement thereof) of such Collateral pursuant to the terms of the ABL Intercreditor Credit Agreement resulting in the release of the Lien on such Collateral securing the Credit Agreement; or (D) that is Notes Collateralotherwise in accordance with, pursuant to and as expressly provided for under, the terms of Indenture or the Notes Intercreditor Agreements or (E) that at any time becomes Excluded PropertyAgreement;
(iv5) in whole as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with this Indenture;; and
(v6) with the consent of Holders holders of seventy-five percent (75% %) in aggregate principal amount of the Notes then outstanding Securities (including, without limitation, consents obtained in accordance connection with Section 9.02a tender offer or exchange offer for, or purchase of Securities); provided, that, in the case of any release in whole pursuant to clauses, clauses (i1) and through (ii3) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the NotesSecurities, the Guarantees and Subsidiary Guarantees, the Collateral Documents and the Intercreditor Agreement have been paid; and
(vi) upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof)To the extent required herein, the Company and each Subsidiary Guarantor will shall furnish to the Notes Collateral AgentTrustee, prior to each proposed release of such Collateral pursuant to the Collateral Documents and this the Indenture:
, an Officers’ Certificate and an Opinion of Counsel as required under Section 13.4 (i) an Officer’s Certificate requesting such release, including a statement release and (ii) to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;with.
(iic) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent and shall provide that the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and upon delivery by the Company or such Guarantor to the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the its Subsidiary Guarantors, as the case may be, the released CollateralCollateral in accordance with the directions of the Company, and (b) upon written request by the Company or the applicable its Subsidiary Guarantor, as the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateralcase may be.
(d) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or Indenture, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture.
(e) Notwithstanding any provision to the contrary herein, as and when requested by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver Uniform Commercial Code financing statement amendments or releases (which shall be prepared by the Company) solely to the extent necessary to delete Excluded Collateral from the description of assets in any previously filed financing statements. Any person If requested in writing by the Company, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Company) and to take such other action as the Company may rely on this (d) request to evidence or confirm that Excluded Collateral described in delivering a certificate requesting release the immediately preceding sentence has been released from the Liens of any collateraleach of the Collateral Agreements. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Trustee.
Appears in 1 contract
Samples: Indenture (Nebraska Book Co)
Release of Liens on the Collateral. (a) Subject to the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets Collateral shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent automatically and without the any need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the following:
(i) in wholewhole or in part, upon 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;
(ii) in whole upon:
(1) satisfaction and discharge of this Indenture as set forth in Section 12.01;8.1(a); or
(ii2) in whole, upon a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.02 or Section 8.03, as applicable8.1(b);
(iii) in part, as to any property constituting Collateral that (Ax) that is sold sold, transferred or otherwise disposed of by the Company or any of its Subsidiaries Subsidiary Guarantor (other than to the Company or a Subsidiary Guarantor) in a transaction permitted by Section 3.02 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and at the Collateral Documents; (B) that is cash time of such sale, transfer or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements disposition or (Ey) that is owned or at any time becomes Excluded Propertyacquired by a Subsidiary Guarantor that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary);
(iv) pursuant to an amendment in accordance with Article IX;
(v) in whole as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with this Indenture;
(v) with the consent of Holders of 75% in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, that, in the case of any release in whole pursuant to clauses, (i) and (ii) above, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paid10.2; and
(vi) upon in part, in accordance with the incurrence by the Company or any Guarantor applicable provisions of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms of such Lien prohibit other Liens thereon.
(c) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the Company and each Guarantor will furnish to the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:the ABL Intercreditor Agreement.
(ib) an Officer’s Certificate requesting such release, including a statement In connection with any termination or release of any Liens in all or any portion of the Collateral pursuant to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent or any of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documents;
(ii) a form of such release (which release , the Trustee shall, or shall be in form reasonably satisfactory cause the Collateral Agent to, promptly execute, deliver or acknowledge all documents, instruments and releases that have been requested to release, reconvey to the Notes Collateral Agent and shall provide that Company and/or the requested release is without recourse or warranty to the Notes Collateral Agent);
(iii) all documents required by this Indenture and the Collateral Documents; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by the Collateral Documents and this Indenture. Upon compliance by the Company or the Subsidiary Guarantors, as the case may be, such Collateral or otherwise give effect to, evidence or confirm such termination or release in accordance with the conditions precedent set forth above in connection with any release directions of Collateral (whether or not such compliance is required under this Section 11.06(c)), and upon delivery by the Company or such Guarantor to and/or the Notes Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the GuarantorsSubsidiary Guarantor, as the case may be, the released Collateral, and (b) upon written request by the Company or the applicable Guarantor, the Notes Collateral Agent will file, or authorize the filing of appropriate termination statements or other documents to terminate the security interest in the released Collateral.
(dc) The release of any Collateral in accordance with from the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the such Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely The Trustee and each of the Holders each acknowledge and direct the Trustee and the Collateral Agent that a release of Collateral or a Lien in accordance with the terms of any Collateral Document and this Article XI will not be deemed for any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this Indenture.
(d) Notwithstanding any provision to the contrary herein, as and when requested by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to authorize the filing of Uniform Commercial Code financing statement amendments or releases (which shall be prepared by the Company or such Subsidiary Guarantor) solely to the extent necessary to delete or release Liens on property or assets not required to be subject to a Lien under the Collateral Documents from the description of assets in delivering any previously filed financing statements. If requested in writing by the Company or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to execute such documents, instruments or statements reasonably requested of it (which shall be prepared by the Company or such Subsidiary Guarantor) and to take such other action as the Company may request to evidence or confirm that such property or assets not required to be subject to a certificate requesting Lien under the Collateral Documents described in the immediately preceding sentence has been released from the Liens of each of the Collateral Documents. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Company, any Subsidiary Guarantor or the Trustee.
(e) In no event shall the Trustee or Collateral Agent be obligated to execute or deliver any document evidencing any release or reconveyance without receipt of any collateralan Opinion of Counsel and Officers’ Certificate, each stating that such release complies with this Indenture, the Intercreditor Agreements and the Collateral Documents.
Appears in 1 contract
Samples: Indenture (McClatchy Co)
Release of Liens on the Collateral. (a) Subject to The Liens on the Intercreditor Agreements, the Notes Collateral Agent shall not at any time release the Collateral from the security interests created by the Collateral Documents unless such release is expressly in accordance with the provisions of this Indenture and the applicable Collateral Documents.
(b) Collateral will be released from with respect to the Liens and security interests created by the Collateral Documents at any time or from time to time in accordance with the provisions of this Indenture Securities and the Collateral Documents. The Company and the Guarantors will be entitled to releases of property and assets included in the Collateral from the Liens securing Obligations under this Indenture, the Notes, the Note Guarantees, and the Collateral Documents under any one or more of the following circumstances, and such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral Agent and without the need for any further action by any Person (except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of the followingapplicable:
(i1) in whole, upon payment in full of the principal of, accrued and unpaid interest, including additional interest, and premium, if any, on the Securities;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Section 12.018.1(a);
(ii3) in whole, upon a legal defeasance or covenant defeasance as set forth in Section 8.02 or Section 8.03, as applicableunder Article VIII;
(iii4) in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or cash withdrawn from deposit accounts for any of its Subsidiaries (other than to the Company or a Guarantor) in a transaction purpose permitted by Section 3.02 and by this Indenture, the Collateral DocumentsDocuments or the Intercreditor Agreement, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture and the Collateral Documents; (B) if all other Liens on that is cash asset securing the Credit Agreement Obligations, Senior Indebtedness and any Pari Passu Secured Indebtedness then secured by that asset (including all commitments thereunder) are released or Net Proceeds withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the terms of the ABL Intercreditor Agreement; (D) that is Notes Collateral, pursuant to the terms of the Notes Intercreditor Agreements or (E) that at any time becomes Excluded Property;
(iv) that is owned by a Guarantor that is released from its Guarantee otherwise in accordance with with, and as expressly provided for under, this Indenture;
(v5) with the consent of Holders the Initial Holder or holders of 75% sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes then outstanding in accordance with Section 9.02, provided, thatSecurities (or, in the case of any a release of all or substantially all Collateral, each holder of the Securities affected thereby), including, without limitation, consents obtained in whole pursuant to clausesconnection with a tender offer or exchange offer for, (i) and (ii) aboveor purchase of, all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Guarantees and the Collateral Documents have been paidSecurities; and
(vi6) with respect to assets of a Note Guarantor upon the incurrence by the Company or any Guarantor of any Permitted Lien on any Collateral that is a purchase money Lien, or is a pre-existing Lien on property acquired after the Issue Date where the terms release of such Lien prohibit other Liens thereonNote Guarantor from its Note Guarantee as set forth under Article XI above.
(cb) For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and (vi) thereof), the The Company and each Note Guarantor will furnish to the Notes Initial Holder or the Trustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to Section 12.07(a)(1) through (6) or pursuant to the Collateral Documents and this IndentureDocuments:
(i1) an Officer’s Officers’ Certificate requesting such release, including a statement and an Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release have been complied with including the delivery to the Notes Collateral Agent of all documents required under this Section 11.06(c) and that the release is permitted by this Indenture and the Collateral Documentswith;
(ii2) a form of such release (which release shall be in form reasonably satisfactory to the Notes Collateral Agent Initial Holder or the Trustee, as applicable, and shall provide that the requested release is without recourse or warranty to the Notes Collateral AgentTrustee);
(iii3) all documents required by this Indenture Indenture, the Collateral Documents and the Collateral DocumentsIntercreditor Agreement; and
(iv4) an Opinion of Counsel to the effect that such release and other accompanying documents constitute all documents required by this Indenture and the Collateral Documents and such release is authorized or permitted by Documents, the Collateral Documents Intercreditor Agreement and this Indenture. Upon compliance by the Company or the Note Guarantors, as the case may be, with the conditions precedent set forth above in connection with any release of Collateral (whether or not such compliance is required under this Section 11.06(c))above, and if required by this Indenture upon delivery by the Company or such Note Guarantor to the Notes Collateral Agent of Initial Holder or the Trustee, as applicable, an Opinion of Counsel to the effect that such conditions precedent have been complied with, (a) the Initial Holder, the Trustee or the Notes Collateral Agent shall promptly cause to be released and reconveyed to the Company, or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and (b) upon written request by the Trustee and Collateral Agent shall promptly execute and deliver to the Company or the applicable relevant Guarantor, as the Notes Collateral Agent will filecase may be, such instruments of release or authorize the filing of appropriate termination statements or reconveyance and other documents to terminate as the security interest in the released CollateralCompany or such Guarantor may request.
(d) The release of any Collateral in accordance with the terms of this Indenture and the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Collateral Documents if and to the extent the Collateral is released pursuant to this Indenture or the Collateral Documents or upon the termination of this Indenture. Any person may rely on this (d) in delivering a certificate requesting release of any collateral.
Appears in 1 contract
Samples: Indenture (Libbey Inc)
