Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 extent it continues to constitute) Excluded Assets; (2) in whole upon: (a) satisfaction and discharge of this Indenture as set forth in Article 12; or (b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8; (3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary); (4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid. (b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture: (1) an Officer’s Certificate requesting such release or acknowledgement; (2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and (3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee). (c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateral.
Appears in 2 contracts
Samples: Indenture (Par Pacific Holdings, Inc.), Indenture (Par Pacific Holdings, Inc.)
Release of Liens on the Collateral. (a) The Subject to the Intercreditor Agreements, the Notes Collateral Trustee’s Liens upon 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 no longer secure be released from the Notes Liens and security interests created by the Collateral Documents at any time or other 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 outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements)Indenture, the Notes, the Guarantees, and the right Collateral Documents under any one or more of the Holders to the benefits following circumstances, and proceeds of the Collateral Trustee’s such Liens on the following assets shall automatically, without requirement for consent or approval from the Holders, the Trustee or the Notes Collateral will automatically Agent and without the need for any further action by any Person (other than notice except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of such release to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedfollowing:
(1i) in whole or in partwhole, 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) upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 12.01;
(bii) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in Article 8Section 8.02 or Section 8.03, as applicable;
(3iii) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers Company or any Guarantor of its Subsidiaries (other than to the Company or another Restricted Subsidiarya 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 Security Documents at Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the time terms of such salethe ABL Intercreditor Agreement; (D) that is Notes Collateral, transfer or disposition pursuant to the terms of the Notes Intercreditor Agreements or (bE) is owned or that at any time acquired becomes Excluded Property;
(iv) that is owned by a Guarantor that has been is 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);
(4v) in whole or in part, as applicable, with the consent of Holders of 66-2/375% or more 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);
(5) in part, then outstanding 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 CollateralSection 9.02, upon termination of such lease;
(7) with respect to Collateral that is Capital Stockprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1)clauses, (2i) and (4ii) above, all amounts owing to the Trustee and the Notes Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, Guarantees and the Collateral Trust and Intercreditor Agreement and the other Security 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.
(bc) To the extent a proposed release of Collateral is not automatic For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral(vi) thereof), the Issuers Company and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Notes Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1i) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral 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 such the release of Collateral is permitted by this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andDocuments;
(3ii) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Notes Collateral Trustee Agent and shall provide that the requested release is without recourse or warranty to the Trustee and Notes Collateral TrusteeAgent).;
(ciii) 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 Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth aboveabove 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 Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release shall be released with respect to the Collateral TrusteeSecurities and the Subsidiary Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicabletogether with accrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture Indenture;
(3) in whole, upon a legal defeasance as set forth in Article 12; or
(bSection 8.1(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8hereof;
(34) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either the Company or any of the Issuers Subsidiary Guarantors in a transaction permitted by Section 3.7 and by the Collateral Documents (to the extent of the interest sold or disposed of) or otherwise permitted by this Indenture and the Collateral Documents; (B) that is cash or Net Available Cash withdrawn from the Collateral Account for any Guarantor one or more purposes permitted by Section 3.7(a) or for any other expenditures not prohibited by the Indenture; (C) upon any release, sale or disposition (other than in connection with a cancellation or termination of the ABL Credit Agreement or Term Loan Agreement without a replacement thereof) of such Collateral pursuant to the Company terms of the ABL Credit Agreement or another Restricted SubsidiaryTerm Loan Credit Agreement resulting in the release of the Lien on such Collateral securing the ABL Credit Agreement or Term Loan Agreement; or (D) otherwise in a transaction not prohibited by this accordance with, and as expressly provided for under, the Indenture or the Security Documents at the time of such sale, transfer or disposition or Intercreditor Agreement;
(b5) in whole as to all Collateral that is owned or at any time acquired by a Subsidiary Guarantor that has been is 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);; and
(46) in whole or in part, as applicable, with the consent of Holders holders of 66seventy-2/3% or more five percent (75%) in aggregate principal amount of Notes the Securities (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase ofof Securities); provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (43) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the NotesSecurities, the Subsidiary Guarantees, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralrequired herein, the Issuers Company and such Guarantor, as applicable, will each Subsidiary Guarantor shall furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this the Indenture:
(1) , an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 Counsel as required under Section 13.4 (i) requesting such release and 13.05 hereof (ii) to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)with.
(c) Upon compliance by the Issuers Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the its Subsidiary Guarantors, as the case may be, the released CollateralCollateral in accordance with the directions of the Company, or its Subsidiary Guarantor, as the case may be.
(d) The release of any Collateral from the terms of 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, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. The Trustee and each of the Holders acknowledge that a release of any Collateral 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest (including Special Interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any) and premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orXII hereof;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance legal defeasance as set forth in Article 8Section 8.2 hereof;
(34) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to Holdings, the Company or another any of the Restricted Subsidiary) Subsidiaries in a transaction permitted by Section 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 3.5(a) hereof; (C) 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 Credit Facility resulting in the release of the Lien on such Collateral securing the ABL Credit Facility; (D) 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 of Regulation S-X under the Securities Act, due to the 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) otherwise in accordance with, and as expressly provided for under, this Indenture or the Security Documents at the time of such sale, transfer or disposition or Intercreditor Agreement;
(b5) that is owned or at any time acquired by a Guarantor that has been is released from its Subsidiary Note Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee ;
(including 6) in connection with the designation of a Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);Permitted Restructuring in compliance with Section 4.2; and
(47) in whole or in part, as applicable, with the consent of Holders of 66-66 2/3% or more in aggregate principal amount of the Notes (including 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 Collateralprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (45) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Note Guarantees, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Company and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such First Priority Collateral or acknowledgement (and, to the extent required by the TIA, prior to the proposed release of such release any other Collateral) pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c3) all documents required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreement; and
(4) an Opinion of Counsel to the extent required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreement. Upon compliance by the Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantors, as the case may be, the released Collateral.
(c) For purposes of the TIA, the release of any Collateral from the terms of the Collateral Documents 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, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture.
(d) If the Company or a Guarantor at any time after such release of Liens on Collateral notifies the Collateral Agent in writing that any additional 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will securing the Notes shall be automatically and without released under any one or more of the need for any further action by any Person (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 dischargedfollowing circumstances:
(1i) in whole or in In part, as applicableto any property or assets constituting Collateral, as to all enable the Issuer or any portion its Restricted Subsidiaries to consummate the disposition of such property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances or which has become (and only assets to the extent it continues not prohibited under Section 4.10;
(ii) in the case of a Guarantor that is released from its Guarantee with respect to constitutethe Notes in accordance with Section 11.06, the release of the property and assets of such Guarantor;
(iii) upon any such property or assets becoming Excluded Assets;
(2iv) as permitted by the Intercreditor Agreements; or
(v) as permitted by Section 9.02(f).
(b) The security interests in whole all Collateral securing the Notes will be released upon:
(ai) 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 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 as set forth in accordance with Article 12XII); or
(bii) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by under this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (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 Sections 8.02 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)8.03.
(c) In connection with a release of Collateral, 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.
(d) Upon compliance the receipt of an Officer’s Certificate from the Issuer, as described in Section 10.10(c), if applicable, and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth aboveIssuer, the Notes Collateral Agent and/or the Trustee or the Collateral Trustee shall promptlyshall, upon the request and at the expense Issuer’s expense, execute, deliver or acknowledge such instruments or releases reasonably requested in writing by the Issuer to evidence the release of the Issuers or such Guarantors, cause any Collateral permitted to be released and reconveyed pursuant to the Issuers, this Indenture or the Guarantors, as Notes Security Documents or the case may be, the released CollateralEqual Priority Intercreditor Agreement.
Appears in 2 contracts
Samples: Indenture (Life Time Group Holdings, Inc.), Indenture (Life Time Group Holdings, Inc.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral securing the Notes will automatically and without the need for any further action by any Person (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 dischargedreleased:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion if any, on the Notes 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 Assetsseries;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12; or
(bA) a Legal Defeasance or Covenant Defeasance of such series of Notes as set forth in Article 8;VIII hereof; or
(B) the satisfaction and discharge of this Indenture with respect to such series of Notes as set forth in Section 11.01; or
(C) upon the occurrence of a 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).
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers any Issuer or any Guarantor (other than to the Company any Issuer or another Restricted SubsidiaryGuarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, in accordance with the consent of Holders of 66-2/3% or more provisions in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes)Article IX;
(5) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement Security Documents and the other Security Documents;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 extent that any lease is Collateral, upon termination of such lease;
(7) with respect to Collateral that is Capital Stockhas been taken by eminent domain, upon the dissolution condemnation or liquidation of the issuer of such Capital Stock that is not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; other similar circumstances, provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement Security Documents and the other Security Documents Intercreditor Agreements with respect to such series of Notes have been paidpaid in full. Notwithstanding clause (2)(C) above, upon the 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 Term Loan Collateral Agent or the ABL Collateral Agent, as applicable.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of CollateralAgent, the Issuers and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) , an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect Counsel that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) relating to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)with.
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee Agent shall promptly, upon the request promptly cause to be released and reconveyed (at the expense of the Issuers or such the Guarantors, cause to be released and reconveyed ) to the Issuers, Issuers or the Guarantors, as the case may be, the released Collateral.
Appears in 2 contracts
Samples: Indenture (NGL Energy Partners LP), Indenture (NGL Energy Partners LP)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedSecurities:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest (including Additional Interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any), condemnation or other similar circumstances or which has become (premium, if any, and only to Additional Amounts, if any, on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 8.1(a) hereof;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance legal defeasance as set forth in Article 8Section 8.1(b) hereof;
(34) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of its Restricted Subsidiary) Subsidiaries in a transaction not prohibited permitted by this Indenture Section 3.5 or the Security Documents at Collateral Documents, to the time extent of such salethe interest sold or disposed of, transfer (B) that is cash or Net Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.5(a), (C) that is of the 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 or as therein provided, (bD) that constitute Excess Collateral Proceeds that remain unexpended after the conclusion of a Collateral Disposition Offer conducted in accordance with this Indenture, (E) that is owned or at any time acquired by a Guarantor Subsidiary of the Company that 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 Guarantee (including in connection 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 designation of a Guarantor SEC (or any other governmental agency) or (G) otherwise in accordance with, and as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);expressly provided for under, this Indenture, including, without limitation, Article X; and
(45) in whole or in part, as applicable, with the consent of Holders of 66-2/375% or more in aggregate of the outstanding principal amount of Notes the Securities, unless such release involves all or substantially all of the Collateral, in which case such release will require the consent of each Holder affected thereby (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
(5) in part; provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1this Section 11.6(a), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the NotesSecurities, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Company and such Guarantor, as applicable, each Subsidiary Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c4) all documents required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreement; and
(5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreement. Upon compliance by the Issuers Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Subsidiary Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Subsidiary Guarantors, as the case may be, the released Collateral.
(c) For purposes of the TIA, the release of any Collateral from the terms of the Collateral Documents 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, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture.
Appears in 2 contracts
Samples: Indenture (Cellu Tissue - CityForest LLC), Indenture (Cellu Tissue Holdings, Inc.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the Note Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to if any, on the Notes and 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 Assetsobligations thereunder;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8the Indenture;
(3) in partwhole, upon a legal or covenant defeasance as to any property constituting Collateral that (a) is sold, transferred set forth in Section 8.02 or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)Section 8.03 hereof;
(4) in whole or in part, as applicableto any property constituting Collateral that is sold or otherwise disposed of in a transaction permitted by Section 4.10 and by the Collateral Documents (to the extent of the interest sold or disposed of) or otherwise permitted by this Indenture and the Collateral Documents; or otherwise in accordance with, and as expressly provided for under, this Indenture or the Intercreditor Agreements;
(5) in whole as to all Collateral that is owned by a Guarantor that is released from its Note Guarantee in accordance with this Indenture; and
(6) with the consent of Holders of 66-2/375% or more in aggregate principal amount of the Notes (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in part; provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (43) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Note Guarantees, the Collateral Trust and Intercreditor Agreement Documents and the other Security Documents Intercreditor Agreements have been paidpaid or otherwise provided for to the reasonable satisfaction of the Trustee.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth abovein clauses (a) and (b) of this Section 11.09, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, Company or the Guarantors, as the case may be, the released Collateral and, if necessary, the Collateral Agent shall, at the Company’s expense, cause to be filed such documents or instruments (as prepared by the Company and provided to the Collateral Agent) as shall be necessary to provide for the release by the Collateral Agent of the released Collateral.
(c) The release of any Collateral from the terms of 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, the Collateral Documents or the Intercreditor Agreements or upon the termination of this Indenture. 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 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 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 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.
Appears in 2 contracts
Samples: Indenture (Angiotech America, Inc.), Indenture (Angiotech Pharmaceuticals Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes other Priority Lien Indebtedness or Pari Passu Lien Hedge AgreementsDebt), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 extent it continues to constitute) Excluded AssetsProperty;
(2) in whole upon:
(aA) satisfaction and discharge of this Indenture as set forth in Article 1211; or
(bB) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company Issuers or another Restricted Subsidiarya Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Guarantor that has been released from its Subsidiary Note Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Note Guarantee or (including in connection 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 designation release of a Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)Note Guarantee;
(4) in whole or in part, as applicable, with the consent of Holders of (i) 66-2/3% or more in aggregate principal amount of 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 part, in accordance with the applicable provisions of the Security Documents and the Collateral Trust and Intercreditor Agreement and the other Security DocumentsAgreement;
(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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) Each of the releases described in clauses (1) through (7) of Section 13.09(a) (other than 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 a proposed required by this Indenture for the release of properties that constitute Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralpursuant to clause (3)(a) above, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) , an Officer’s Officers’ Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in such transaction and the disposition of the proceeds thereof will comply with the terms of the Security Documents and this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)as applicable.
(c) Upon compliance by either of the Issuers or the Guarantorsany Guarantor, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, Issuers or the Guarantors, as the case may be, the released Collateral.
Appears in 2 contracts
Samples: Indenture (CSI Compressco LP), Indenture (CSI Compressco LP)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will shall automatically and without the any need for any further action by any Person (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 dischargedreleased:
(1i) 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 extent it continues to constitute) Excluded Assetscircumstances;
(2ii) in whole or in part, upon the election of the Issuer following the Suspension Date pursuant to Section 3.13;
(iii) in whole upon:
(a1) satisfaction and discharge of this Indenture as set forth in Article 12Section 8.1(a); or
(b2) a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance of this Indenture as set forth in Article 8Section 8.1(b);
(3iv) in part, as to any property constituting Collateral that (ax) is sold, transferred or otherwise disposed of by either of the Issuers Issuer or any Guarantor (other than to the Company Issuer or another Restricted SubsidiaryGuarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (by) is owned or at any time acquired by a Guarantor that has been released from its Subsidiary Note 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)Note Guarantee;
(4v) pursuant to an amendment in accordance with Article IX;
(vi) in whole or as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in part, as applicable, accordance with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);Section 10.2; and
(5vii) 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed In connection with any termination or release of any Liens of the Holders in all or any portion of the Collateral is not automatic and requires pursuant to this Indenture or any action by of the Collateral Documents, the Trustee shall, or shall cause the Collateral Trustee Agent to, promptly execute, deliver or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralall documents, the Issuers instruments and such Guarantorreleases necessary to release, as applicable, will furnish reconvey to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers 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, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense directions of the Issuers or such Guarantors, cause to be released and reconveyed to Issuer and/or the Issuers, or the GuarantorsGuarantor, as the case may be.
(c) The release of any Collateral from the terms of the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to this Indenture or upon termination of this Indenture. 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 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 Lien under the Collateral Documents described in the immediately preceding sentence has been released Collateralfrom the Liens of each of the Collateral Documents.
Appears in 1 contract
Samples: Indenture (American Axle & Manufacturing Holdings Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will shall automatically and without the any need for any further action by any Person (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 dischargedreleased:
(1i) 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 extent it continues to constitute) Excluded Assetscircumstances;
(2ii) in whole upon:
(a1) satisfaction and discharge of this Indenture as set forth in Article 12Section 8.1(a); or
(b2) a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance of this Indenture as set forth in Article 8Section 8.1(b);
(3iii) in part, as to any property constituting Collateral that (ax) is sold, transferred or otherwise disposed of by either of the Issuers Company or any Subsidiary Guarantor (other than to the Company or another Restricted Subsidiarya Subsidiary Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (by) is owned or at any time acquired 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 or upon such Guarantor becoming an Excluded Subsidiary);
(4iv) pursuant to an amendment in accordance with Article IX;
(v) in whole or as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in part, as applicable, accordance with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);Section 10.2; and
(5vi) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement Documents 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and ABL Intercreditor Agreement and the other Security Documents have been paidAgreement.
(b) To the extent a proposed In connection with any termination or release of any Liens in all or any portion of the Collateral is not automatic and requires pursuant to this Indenture or any action by of the Collateral Documents, the Trustee shall, or shall cause the Collateral Trustee Agent to, promptly execute, deliver or if the Issuers or any Guarantor desire acknowledge all documents, instruments and releases that the Trustee or the Collateral Trustee acknowledge such release of Collateralhave been requested to release, the Issuers and such Guarantor, as applicable, will furnish reconvey to the Trustee and Company and/or the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers 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, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense directions of the Issuers or such Guarantors, cause to be released and reconveyed to Company and/or the Issuers, or the GuarantorsSubsidiary Guarantor, as the case may be.
(c) The release of any Collateral from the terms of the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to this Indenture or upon termination of this Indenture. 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 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 Lien under the Collateral Documents described in the immediately preceding sentence has been released Collateralfrom 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 an 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeSecurities and the Note Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding additional interest, condemnation or other similar circumstances or which has become (and only to premium, if any, on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8accordance with Section 8.1(a);
(3) in whole, upon a legal defeasance as set forth under Article VIII;
(4) in part, as to any property asset constituting Collateral (A) that (a) is sold, transferred or otherwise disposed of cash withdrawn from deposit accounts for any purpose permitted by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Guarantor that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee Collateral Documents or the Intercreditor Agreement, (B) if all other Liens on that 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 (C) otherwise in connection with the designation of a Guarantor accordance with, and as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)expressly provided for under, this Indenture;
(45) in whole or in part, as applicable, with the consent of Holders the Initial Holder or holders of 66sixty-six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of Notes the Securities (including or, in the case of a release of all or substantially all Collateral, each holder of the Securities affected thereby), 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;Securities; and
(6) to the extent that any lease is Collateral, upon termination of such lease;
(7) with respect to Collateral that is Capital Stock, assets of a Note Guarantor upon the dissolution or liquidation of the issuer release of such Capital Stock that is not prohibited by this Indenture; orNote Guarantor from its Note Guarantee as set forth under Article XI above.
(8) as described in Section 9.02 hereof; provided that, in b) The Company and each Note Guarantor will furnish to the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to Initial Holder or the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 12.07(a)(1) through (6) or acknowledgement of such release pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee Initial Holder or the Trustee, as applicable, and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c3) all documents required by this Indenture, the Collateral Documents and the Intercreditor Agreement; and
(4) an Opinion of Counsel to the effect that such release and other accompanying documents constitute all documents required by the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the Issuers Company or the Note Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Company or such Note Guarantor to the Initial Holder or the Trustee, as applicable, an Opinion of Counsel to the effect that such conditions have been complied with, the Initial Holder, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and the Trustee and Collateral Agent shall promptly execute and deliver to the Company or the relevant Guarantor, as the case may be, such instruments of release or reconveyance and other documents as the Company or such Guarantor may request.
Appears in 1 contract
Samples: Indenture (Libbey Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedSecurities:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(bSection 9.1(a) a Legal Defeasance or Covenant Defeasance as set forth in Article 8hereof;
(3) in whole, upon a legal defeasance as set forth in Article VII hereof;
(4) 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 (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) of their Subsidiaries in a transaction not prohibited permitted by this Indenture or the Security Documents at Documents, to the time extent of such salethe interest sold or disposed of, transfer or (B) that is of the nature described in the proviso in the definition of “Asset Sale” and is subject to a disposition or as therein provided, (bC) that is owned or at any time acquired by a Guarantor Subsidiary of the Issuers that has been released from its Subsidiary Guarantee obligations under the Guaranty in accordance with this Indenture, concurrently with the release thereof, (D) that is 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 Securities Act, due to the fact that such shares of such Subsidiary Guarantee (including in connection Subsidiary’s Capital Stock secures the Securities, to file separate financial statements with the designation of a Guarantor SEC (or any other governmental agency), or (E) otherwise in accordance with, and as an Unrestricted Subsidiary expressly provided for under, this Indenture, including, without limitation, Article IX, or upon such Guarantor becoming an Excluded Subsidiary);the Security Documents; or
(45) in whole or in part, as applicable, with the consent of Holders of 66-2/3% 66⅔% or more in aggregate of the outstanding principal amount of Notes the Securities, unless such release involves all or substantially all of the Collateral, in which case such release will require the consent of each Holder affected thereby (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
(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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andDocuments;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee Required Holders and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c4) all documents required by TIA §314(d), this Indenture and the Security Documents; and
(5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and the Security Documents. Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuers or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request be authorized to release and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed reconvey to the Issuers, or the Guarantors, as the case may be, the released Collateral, unless otherwise specified in the Security Documents.
(c) For purposes of the TIA, the release of any Collateral from the terms of the Security Documents 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 Security Documents if and to the extent the Collateral is released pursuant to this Indenture or the Security Documents or upon the termination of this Indenture.
Appears in 1 contract
Samples: Indenture (FRNK Technology Group)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12XII hereof; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (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 Collateralwhole, 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) a legal defeasance as described set forth in Section 9.02 8.2 hereof; provided . provided, that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (43) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement Documents and the other Security Documents Indenture Subordination Agreement have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers and such Guarantor, as applicable, Company will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such First Priority Collateral, prior to the proposed release of any other Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c3) all documents required by this Indenture, the Collateral Documents and the Indenture Subordination Agreement; and
(4) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture, the Collateral Documents and the Indenture Subordination Agreement. Upon compliance by the Issuers or the Guarantors, as the case may beCompany, with the conditions precedent set forth above, and upon delivery by the Company to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, Company the released Collateral.
(c) The release of any Collateral from the terms of the Collateral Documents 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, the Collateral Documents or the Indenture Subordination Agreement or upon the termination of this Indenture.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect 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 extent it continues to constitute) Excluded Assets;
(2) in whole uponNotes:
(a) satisfaction and upon the defeasance or discharge of this Indenture the Notes as set forth provided in Article 12; or8 or Article 10, in each case in accordance with the terms of this Indenture;
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8upon an enforcement action pursuant to the terms of the Group Intercreditor Deed;
(3c) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of the Restricted Subsidiary) Subsidiaries in a transaction permitted by Section 4.10 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture or and the Security Documents at the time of such saleCollateral Documents; (B) otherwise in accordance with, transfer or disposition and as expressly provided for under this Indenture; or (bC) that no longer secures any obligations under the Existing Credit Facility or any Pari Passu Lien Obligations;
(d) if the Collateral is owned or at any time acquired by a Note Guarantor that has been is released from its Subsidiary Note 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);
(4e) in whole or in part, as applicable, with the consent of Holders of 66at least seventy-2/3% or more five percent (75%) in aggregate principal amount of the Notes (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes);; and
(5f) 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 provided for in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) 4.24. To the extent a proposed required by this Indenture for the release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire principal properties that the Trustee or the Collateral Trustee acknowledge such release of constitute Collateral, the Issuers and such Guarantor, as applicable, Issuer will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) , an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and Certificate, an Opinion of Counsel, in compliance with Sections 13.04 Counsel and 13.05 hereof to any other documentation reasonably required by the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted Trustee as required by this Indenture. In addition, in connection with the incurrence of any Pari Passu Lien Obligations, the other Note 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 Security Trustee, for the benefit of the Holders, also enters into the Replacement Collateral Documents (including, without limitation, which provide for Liens on the Collateral Trust which are equal, or substantially equal, to the Liens provided for the benefit of any Pari Passu Lien Obligations; and Intercreditor Agreement); and
(3) provided further that a form of such release or acknowledgement (which release or acknowledgement shall board resolution be in form reasonably satisfactory 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 Collateral 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 shall provide that the requested Trustee, upon request of the Company, to so release is without recourse or warranty 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 Trustee relevant jurisdictions and Collateral Trustee).
(c) may limit the recovery in an enforcement proceeding. Upon compliance by the Issuers Issuer or the Note Guarantors, as the case may be, with the conditions precedent set forth above, as applicable, the Trustee or the Collateral Security Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, as soon as reasonably practicable cause to be released and reconveyed to the IssuersIssuer, or the its Note Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Samples: Indenture (Virgin Media Inc.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily may still secure any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreementsother Cash Flow Obligations), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 extent it continues to constitute) Excluded Assets;
(2) in whole upon:
(a) upon satisfaction and discharge of this Indenture as set forth in Article 12; or;
(b) upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3c) 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 of the Company or a Guarantor that (a) is sold, transferred or otherwise disposed of by either of the Issuers Company or any Guarantor to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Guarantor in a transaction or other circumstance that does not violate Section 4.10 (other than the obligation to apply proceeds of such Asset Sale as provided in such provision) and is permitted (or not prohibited) by the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents Notes Documents, at the time of such sale, transfer or other disposition or (b) to the extent of the interest sold, transferred or otherwise disposed of; provided that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is owned or at any time acquired by a Guarantor that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with subject to 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)Section 5.01;
(4e) in whole or in part, as applicable, with the consent of the Holders of 66-2/3% or more in aggregate principal amount the requisite percentage of Notes (including without limitation, consents obtained in connection accordance with a tender offer or exchange offer for, or purchase of, Notes)Article 9;
(5f) in partwith respect to the assets of any Guarantor, in accordance with at the applicable time that such Guarantor is released from its Guarantee pursuant to Section 11.05;
(g) if and to the extent required by the provisions of the Collateral Trust and Agreement or the provisions of the ABL Intercreditor Agreement and the other Security DocumentsAgreement;
(6h) if and 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 Indenturebecomes an Excluded Asset; or
(8) i) as described in Section 9.02 hereof; provided that, in the case of any release in whole ordered pursuant to clauses (1), (2) applicable law under a final and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paidnonappealable order or judgment of a court of competent jurisdiction.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral securing the Notes will automatically and without the need for any further action by any Person (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 dischargedreleased:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12; or
(bA) a Legal Defeasance or Covenant Defeasance as set forth in Article 88 hereof; or
(B) the satisfaction and discharge of this Indenture as set forth in Section 10.01 hereof;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers Issuer or any Subsidiary Guarantor (other than to the Company Issuer or another Restricted SubsidiarySubsidiary Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired 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 Subsidiary) or upon such Guarantor becoming an Excluded Subsidiary)(c) ceases to constitute Collateral in accordance with the terms of this Indenture and the Security Documents;
(4) in whole or in part, as applicable, in accordance with the consent of Holders of 66-2/3% or more provisions in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes)Article 9;
(5) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement Security Documents and the other Security DocumentsIntercreditor Agreement;
(6) with respect to the extent that any lease is ABL Priority Collateral, upon termination the release of the Lien on such lease;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) with respect in whole or in part, as applicable, as to all or any part of the Collateral that is Capital Stockhas been taken by eminent domain, upon the dissolution condemnation or liquidation of the issuer of such Capital Stock that is not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; other similar circumstances, provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Notes Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust Security Documents and the Intercreditor Agreement and the other Security Documents have been paidpaid in full.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Notes Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of CollateralAgent, the Issuers Issuer and such Guarantor, as applicable, each Subsidiary Guarantor will furnish to the Trustee and the Notes Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) , an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) relating to such release of Collateral have been complied with with. For the avoidance of doubt, it is agreed and understood that such release no Opinion of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement Counsel shall be required in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release connection with any such release, except as specifically set forth in this Indenture where such Opinion of Counsel is without recourse or warranty to the Trustee and Collateral Trustee)required as a result of any other action taken in connection with such release.
(c) Upon compliance by the Issuers Issuer or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Notes Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed (at the expense of the Issuer or the applicable Subsidiary Guarantors) to the Issuers, Issuer or the Guarantorssuch Subsidiary Guarantor, as the case may be, the released CollateralCollateral and execute and deliver or file such termination or partial release statements and take such other actions as are reasonably necessary to effect the foregoing.
Appears in 1 contract
Samples: Indenture (GameStop Corp.)
Release of Liens on the Collateral. (a) The Subject to the Intercreditor Agreements, the Junior First Lien Notes Collateral Trustee’s Liens upon 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 no longer secure be released from the Notes Liens and security interests created by the Collateral Documents at any time or other 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 outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements)Indenture, the Notes, the Guarantees, and the right Collateral Documents under any one or more of the Holders to the benefits following circumstances, and proceeds of the Collateral Trustee’s 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 will automatically Agent and without the need for any further action by any Person (other than notice except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of such release to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedfollowing:
(1i) in whole or in partwhole, 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) upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 12.01;
(bii) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in Article 8Section 8.02 or Section 8.03, as applicable;
(3iii) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers Company or any Guarantor of its Subsidiaries (other than to the Company or another Restricted Subsidiarya 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 Security Documents at Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the time terms of such salethe ABL Intercreditor Agreement; (D) that is Notes Collateral, transfer or disposition pursuant to the terms of the Notes Intercreditor Agreements or (bE) is owned or that at any time acquired becomes Excluded Property;
(iv) that is owned by a Guarantor that has been is 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);
(4v) in whole or in part, as applicable, with the consent of Holders of 66-2/375% or more 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);
(5) in part, then outstanding 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 CollateralSection 9.02, upon termination of such lease;
(7) with respect to Collateral that is Capital Stockprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1)clauses, (2i) and (4ii) above, all amounts owing to the Trustee and the Notes Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, Guarantees and the Collateral Trust and Intercreditor Agreement and the other Security 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.
(bc) To the extent a proposed release of Collateral is not automatic For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral(vi) thereof), the Issuers Company and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Junior First Lien Notes Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1i) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral 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 such the release of Collateral is permitted by this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andDocuments;
(3ii) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Junior First Lien Notes Collateral Trustee Agent and shall provide that the requested release is without recourse or warranty to the Trustee and Junior First Lien Notes Collateral TrusteeAgent).;
(ciii) 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 Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth aboveabove 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 Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will under the Collateral Documents shall automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(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 extent it continues to constitute) Excluded Assetscircumstances;
(2) in whole whole, upon:
(aA) satisfaction and discharge of this Indenture as set forth in Article 12under Section 12.01; or
(bB) a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance of this Indenture as set forth in described under Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers Company or any Guarantor (other than to the Company or another Restricted SubsidiaryGuarantor) in a transaction not prohibited by this Indenture or the Security Collateral Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of the Majority Holders of 66-2/3% or more in aggregate principal amount of Notes (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 upon the applicable provisions release by the Senior Agent of the Collateral Trust Liens granted in its favour by the Company or any Guarantor, other than in connection with a repayment and Intercreditor Agreement and termination of the other Security DocumentsCredit Facility;
(6) upon the sale or disposition of any Collateral pursuant to the extent that exercise of any lease is Collateralrights and remedies by the Senior Agent, upon termination on behalf of such lease;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 that is Capital Stock, upon securing the dissolution or liquidation Notes in accordance with the terms of the issuer of such Capital Stock that is not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided Intercreditor Agreement, provided, that, in the case of any release in whole pursuant to clauses (1), (2) and (4) abovethe foregoing, all amounts owing to the Trustee and the Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, Note Guarantees and the Collateral Trust and Intercreditor Agreement and the other Security Documents shall have been paid. Any release of Collateral permitted by this clause (a) shall be deemed not to impair the Liens on the remaining Collateral under this Indenture.
(b) To the extent a proposed release of Collateral is not automatic The Company and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will shall furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).; and
(c4) a certificate or opinion of an engineer, appraiser or other expert as to the 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 certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert selected by the Company; and provided, further, that any such certificate or opinion shall not be required under this subclause (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 Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Trustee Company or such Guarantor to the Collateral Trustee Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Collateral Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantors, as the case may be, the released Collateral, and the Collateral Agent shall execute and deliver such documents and instruments prepared by the Company as the Company and the Guarantors may reasonably request to evidence such release without the consent of the Holders of the Notes.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeSecurities and the Note Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding additional interest, condemnation or other similar circumstances or which has become (and only to premium, if any, on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8accordance with Section 8.1(a);
(3) in whole, upon a legal defeasance as set forth under Article VIII;
(4) in part, as to any property asset constituting Collateral (A) that (a) is sold, transferred or otherwise disposed of cash withdrawn from deposit accounts for any purpose permitted by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Guarantor that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee Collateral Documents or the Intercreditor Agreement, (B) if all other Liens on that asset securing the Credit Agreement Obligations and any Pari Passu Secured Indebtedness then secured by that asset (including all commitments thereunder) are released or (C) otherwise in connection with the designation of a Guarantor accordance with, and as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)expressly provided for under, this Indenture;
(45) in whole or in part, as applicable, with the consent of Holders holders of 66sixty-six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of Notes the Securities (including or, in the case of a release of all or substantially all Collateral, each holder of the Securities affected thereby), 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;Securities; and
(6) to the extent that any lease is Collateral, upon termination of such lease;
(7) with respect to Collateral that is Capital Stock, assets of a Note Guarantor upon the dissolution or liquidation of the issuer release of such Capital Stock that is not prohibited by this Indenture; or
(8) Note Guarantor from its Note Guarantee as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) set forth under Article X above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic The Company and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Note Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 11.06(a)(1) through (6) or acknowledgement of such release pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c3) all documents required by this Indenture, the Collateral Documents and the Intercreditor Agreement; and
(4) an Opinion of Counsel to the effect that such release and other accompanying documents constitute all documents required by the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the Issuers Company or the Note Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Company or such Note Guarantor to the Trustee an Opinion of Counsel to the effect that such conditions have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and the Trustee and Collateral Agent shall promptly execute and deliver to the Company or the relevant Guarantor, as the case may be, such instruments of release or reconveyance and other documents as the Company or such Guarantor may request.
Appears in 1 contract
Samples: Indenture (Libbey Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but Securities and the failure to deliver such notice shall not affect such release) terminate and be dischargedSubsidiary Guarantees:
(1i) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding Additional Interest, condemnation or other similar circumstances or which has become (and only to premium, if any, on the extent it continues to constitute) Excluded AssetsSecurities;
(2ii) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture in accordance with Section 8.1(a);
(iii) in whole, upon a legal defeasance as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8VIII;
(3iv) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of its Restricted Subsidiary) Subsidiaries in a transaction not prohibited permitted by this Indenture Section 3.5 or by the Security Documents at Collateral Documents, to the time extent of such salethe interest sold or disposed of, transfer (B) that is cash or disposition Net Available Cash withdrawn from a Collateral Account for any one or more purposes permitted by Section 3.5(a); (C) that is of the nature described in clauses (1), (4), (5), (7), (8), (10), (11) or (b16) of the proviso in the definition of “Asset Disposition,” and is subject to a disposition as therein provided, (D) that is owned or at any time acquired by a Guarantor Subsidiary of the Company that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release thereof, (E) that is Capital Stock of a Subsidiary of the Company to the extent necessary for such Subsidiary Guarantee (including in connection 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 designation of a Guarantor SEC (or any other governmental agency) or (F) otherwise in accordance with, and as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)expressly provided for under, this Indenture;
(4v) in whole or in part, as applicable, with the consent of Holders each holder of 66-2/3% or more in aggregate principal amount of Notes the Securities affected thereby (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);; and
(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;
(7vi) with respect to Collateral that the Newport Beach Property and any mortgage thereon, at the time any Permitted Investment is Capital Stock, upon the dissolution or liquidation of the issuer of made with such Capital Stock that is not prohibited by this Indenture; or
(8) as described in Section 9.02 hereofNewport 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 (1), i) through (2) and (4v) above, all amounts then owing to the Trustee and the Collateral Trustee under this Indenture, the NotesSecurities, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Registration Rights Agreement and the other Security Collateral Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Company and such Guarantor, as applicable, each Subsidiary Guarantor will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1i) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted Counsel as required by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3ii) a form all documents required by §314(d) of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee Trust Indenture Act, the Collateral Documents and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) this Indenture. Upon compliance by the Issuers Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the its Subsidiary Guarantors, as the case may be, the released Collateral, and the Collateral Agent shall take such other actions and execute and deliver such other instruments as may be requested in accordance with the Collateral Documents.
Appears in 1 contract
Samples: Indenture (Conexant Systems Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the Note Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to if any, on the Notes and 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 Assetsobligations thereunder;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8the Indenture;
(3) in partwhole, upon a legal or covenant defeasance as to any property constituting Collateral that (a) is sold, transferred set forth in Section 8.02 or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)Section 8.03 hereof;
(4) in whole or in part, as applicableto any property constituting Collateral that is sold or otherwise disposed of in a transaction permitted by Section 4.10 and by the Collateral Documents (to the extent of the interest sold or disposed of) or otherwise permitted by this Indenture and the Collateral Documents; or otherwise in accordance with, and as expressly provided for under, this Indenture or the Intercreditor Agreement;
(5) 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
(6) with the consent of Holders of 66-2/375% or more in aggregate principal amount of the Notes (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in part; provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (43) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Note Guarantees, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paidpaid or otherwise provided for to the reasonable satisfaction of the Trustee.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth abovein clauses (a) and (b) of this Section 11.09, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, Company or the Guarantors, as the case may be, the released CollateralCollateral in accordance with the directions of the Company.
(c) The release of any Collateral from the terms of 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, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. 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 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 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 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.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right Subject to Section 6.1 of the Holders to Intercreditor Agreement, the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedSecurities:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(bSection 10.1(a) a Legal Defeasance or Covenant Defeasance as set forth in Article 8hereof;
(3) in whole, upon a legal defeasance as set forth in Article VIII hereof;
(4) 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 (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) of their Subsidiaries in a transaction not prohibited permitted by this Indenture or the Security Documents at Documents, to the time extent of such salethe interest sold or disposed of, transfer or (B) that is of the nature described in the proviso in the definition of “Asset Sale” and is subject to a disposition or as therein provided, (bC) that is owned or at any time acquired by a Guarantor Subsidiary of the Issuers that has been released from its Subsidiary Guarantee obligations under the Guaranty in accordance with this Indenture, concurrently with the release thereof, (D) that is 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 Securities Act, due to the fact that such shares of such Subsidiary Guarantee (including in connection Subsidiary’s Capital Stock secures the Securities, to file separate financial statements with the designation of a Guarantor SEC (or any other governmental agency), or (E) otherwise in accordance with, and as an Unrestricted Subsidiary expressly provided for under, this Indenture, including, without limitation, Article X, or upon such Guarantor becoming an Excluded Subsidiary);the Security Documents; or
(45) in whole or in part, as applicable, with the consent of Holders of 66-2/3% 66⅔% or more in aggregate of the outstanding principal amount of Notes the Securities, unless such release involves all or substantially all of the Collateral, in which case such release will require the consent of each Holder affected thereby (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
(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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c4) all documents required by TIA §314(d), this Indenture and the Security Documents; and
(5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and the Security Documents. Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuers or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request be authorized to release and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed reconvey to the Issuers, or the Guarantors, as the case may be, the released Collateral, unless otherwise specified in the Security Documents.
(c) For purposes of the TIA, to the extent required, the release of any Collateral from the terms of the Security Documents 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 Security Documents if and to the extent the Collateral is released pursuant to this Indenture, the Intercreditor Agreement, the Second Lien Intercreditor Agreement or the Security Documents or upon the termination of this Indenture.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes, but the failure to deliver such notice shall not affect such release) terminate Intermediate Holdings Guarantee and be dischargedthe Note Guarantees, as applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 813;
(3) in partwhole, upon a legal defeasance or covenant defeasance as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article 8;
(4) in whole or in part, as applicableto any asset constituting Collateral in accordance with the provisions of 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 repayment or termination of First Lien Priority Indebtedness);
(5) with the consent of Holders of 66sixty-six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of Notes (including the Notes, 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) with respect to the extent that any lease is Collateral, assets of Intermediate Holdings or a Note Guarantor upon termination release of Intermediate Holdings from its Intermediate Holdings Guarantee or such lease;Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) with respect to enable the disposition of property or other assets that constitute Collateral that is Capital Stock, upon to the dissolution or liquidation of the issuer of such Capital Stock that is extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid4.10.
(b) To the extent a proposed release of Collateral is not automatic The Issuer and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Note Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release the Collateral Agent providing any requested written evidence of such Collateral or acknowledgement of such release pursuant to Section 14.07(a)(1) through (7) or pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) 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 or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse to or representation or warranty to by the Trustee and Collateral Trustee).
(c) Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel.
(d) Upon compliance by the Issuers Issuer, Intermediate Holdings or the Note Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture, upon delivery by the Issuer or Intermediate Holdings or such Note Guarantor to the Trustee and the Collateral Agent an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersIssuer, Intermediate Holdings or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer in connection therewith.
(e) 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 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 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 be deemed to relate to such after-acquired property or asset to the same extent and with the same force and effect. If, after the Collateral is released 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 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 Pari Passu Intercreditor Agreement.
Appears in 1 contract
Samples: Indenture (Realogy Holdings Corp.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(1) in whole or in part, as applicable, as to all or any portion of property subject to such Liens which that 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;circumstance
(2) in whole upon:whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes;
(a3) in whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orXII hereof;
(b4) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in Article 8Section 8.02 or Section 8.03, respectively, hereof;
(35) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers Company, Parent or any Guarantor (other than to the Company or another of its Restricted Subsidiary) Subsidiaries in a transaction permitted by Section 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 3.05(a) hereof; (C) 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 Credit Facilities resulting in the release of the Lien on such Collateral securing the ABL Credit Facilities; (D) 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 of Regulation S-X under the Securities Act, due to the 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) otherwise in accordance with, and as expressly provided for under, this Indenture or the Security Documents at the time of such sale, transfer or disposition or Intercreditor Agreements;
(b6) that is owned or at any time acquired by a Guarantor that has been is released from its Subsidiary Note 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);
(47) in whole or in part, as applicable, if the property subject to any such Lien becomes Excluded Property; and
(8) with the consent of Holders of 66-66 2/3% or more in aggregate principal amount of the Notes (including 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 Collateralprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (45) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Note Guarantees, the Collateral Trust and Intercreditor Agreement Documents and the other Security Documents Intercreditor Agreements have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Company and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such First Priority Collateral or acknowledgement (and, to the extent required by the TIA, prior to the proposed release of such release any other Collateral) pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c3) all documents required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreements; and
(4) an Opinion of Counsel to the extent required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreements. Upon compliance by the Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantors, as the case may be, the released Collateral. Without limiting the generality of the foregoing, certain no-action letters issued by the SEC have permitted an indenture qualified under the TIA to contain provisions permitting the release of collateral from Liens under such indenture in the ordinary course of the company’s business without requiring the company to provide certificates and other documents under TIA §314(d).
(c) For purposes of the TIA, the release of any Collateral from the terms of the Collateral Documents 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, the Collateral Documents or the Intercreditor Agreements or upon the termination of this Indenture.
(d) If the Company or a Guarantor at any time after such release of Liens on Collateral notifies the Collateral Agent in writing that any additional 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) The Collateral Trustee’s Liens upon Issuer and the Guarantors are entitled to the releases of property and other assets included in the Collateral will no longer secure from the Liens securing the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right related Note Guarantees, as applicable, under any one or more of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 dischargedfollowing circumstances:
(1) in whole 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 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 prior to the extent it continues to constitute) Excluded Assetstime such principal, together with accrued and unpaid interest and premium, if any, are paid;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8IX;
(3) in partwhole, upon a legal defeasance or covenant defeasance with respect to such series as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article IX;
(4) in whole or in part, as applicableto 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 66-2/3at least 662⁄3% or more in aggregate principal amount of Notes (including such series of Notes, 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 such series of the Collateral Trust and Intercreditor Agreement and the other Security DocumentsNotes as provided under Section 8.02;
(6) as to the extent property and assets of a Subsidiary Guarantor that any lease is Collateral, upon termination of such leasereleased from its Note Guarantee in accordance with Section 10.03;
(7) with respect in part, as to Collateral that is Capital Stockany property or assets constituting Collateral, upon to enable the dissolution or liquidation of Issuer and/or Guarantors to consummate the issuer disposition of such Capital Stock property or other assets to a Person that is not the Issuer or a Guarantor to the extent not prohibited by this Indenture; orSection 4.08;
(8) as described to any property or assets that are Excluded Assets;
(9) in Section 9.02 hereof; provided that, connection with any enforcement action taken by the Collateral Agents (as defined in the case First Lien and Third Lien Intercreditor Agreement) in accordance with the terms of any 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 in whole pursuant to clauses (1)accompanied by an Officer’s Certificate that such release is permitted under the terms of the Indenture and the Third Lien Notes Security Documents, (2) and (4) aboveas applicable, all amounts owing to the Trustee and the Collateral Agent shall execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the 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 under this Indenture, the Notes, the Subsidiary Guarantees, nor the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires Agent shall be liable for any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralundertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Third Lien Notes Security Document to the Issuers and such Guarantorcontrary, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent shall not be under any obligation to release any such Lien and security interest, prior to each proposed release or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)Certificate.
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateral.
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Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole to enable the Issuer or in partits Restricted Subsidiaries to consummate the sale, as applicable, as to all or any portion of property subject to such Liens which has been taken by eminent domain, condemnation transfer or other similar circumstances disposition of such property or which has become (and only assets to the extent it continues to constitute) Excluded Assetsnot prohibited under Section 4.07;
(2) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in whole upon:
(a) satisfaction and discharge of accordance with this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8Indenture;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed the case of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Guarantor that has been is released from its Subsidiary Guarantee in accordance with respect to the Notes pursuant to the terms of this Indenture, concurrently with the release of the property and assets 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)Guarantor;
(4) in whole or in part, as applicablepursuant to Section 9.02(g), with the consent of the Holders of 66-2/3at least 75% or more in of the 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 and affected thereby;
(5) in part, in accordance with pursuant to Section 4.15(c); provided that the applicable provisions of Liens on the Collateral Trust and Intercreditor Agreement securing the Notes and the other Security DocumentsNotes 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 extent that any lease is Collateral, upon termination of such lease;
Collateral pursuant clauses (7v) with respect to Collateral that is Capital Stock, upon the dissolution or liquidation and (vi) of the issuer first proviso to Section 2 of such Capital Stock that is not prohibited by the Security Agreement in connection with a Qualified Receivables Transaction (including any Receivables Financing) permitted under this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole 7) pursuant to clauses Article 9.
(1), b) [Reserved].
(2c) and (4) above, all amounts owing to The Liens on the Trustee Collateral securing the Notes and the Collateral Trustee Guarantees also will be released upon (i) payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement Guarantees and the other Security Documents have been paidthat are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid or (ii) a defeasance under this Indenture pursuant to Article 8 or discharge of the Issuer’s and the Guarantors’ Obligations under this Indenture in accordance with this Indenture.
(bd) To the extent a proposed release of Collateral is not automatic The Issuer and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each applicable Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and Collateral Agent (with a copy to the Collateral Trustee), prior to each proposed release of such Collateral pursuant to Section 11.05(a)(1) through (7), Section 11.05(c) or acknowledgement of such release pursuant to the Security Documents and this IndentureDocuments:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement)with; and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee Agent and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Agent or the Trustee).
(ce) Upon compliance by the Issuers Issuer or the Guarantorsapplicable Guarantor, as the case may be, with the conditions precedent set forth aboveSection 11.05(d), the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, Issuer or the GuarantorsGuarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer in connection therewith.
(f) If the Liens securing the Senior Credit Facility Obligations are released in connection with the repayment (including cash collateralization of 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 Notes Obligations will not be 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 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 and the Security Documents have been complied with.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release shall be released with respect to the Collateral TrusteeNotes and the Subsidiary Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1i) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding Additional Interest, condemnation or other similar circumstances or which has become (and only to premium, if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2ii) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 12.01;
(biii) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in Article 8;
(3iv) in part, as to any property asset constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either TCEH or any of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) Subsidiary Guarantors in a transaction permitted by Section 4.10 and by the Security Documents (to the extent of the interest sold or disposed of) or otherwise permitted by this Indenture and the Security Documents, other than a sale or other disposition to the Issuer or a Restricted Subsidiary or a Permitted Investment described in clause (3) of the definition of “Permitted Investments” (except to the extent the Liens on the asset sold or disposed of are released under the TCEH Senior Secured Facilities), (B) that is cash withdrawn from deposit accounts for any purpose not prohibited by under this Indenture or the Security Documents at the time of such saleDocuments, transfer or disposition or (bC) that is owned or at any time acquired by a Guarantor that has been otherwise released from its Subsidiary Guarantee in accordance with with, and as expressly provided for under, this Indenture, concurrently with the release of such Subsidiary Guarantee Intercreditor Agreement and the Security Documents or (including D) the Liens on which are released under the TCEH Senior Secured Facilities, except in connection with the designation full and complete discharge of the TCEH Senior Secured Facilities (without a Guarantor as substantially concurrent refinancing thereof); provided, that, in the case of any release described in clauses (A) through (C) immediately above, the Liens on such asset securing the TCEH Senior Secured Facilities are simultaneously released, and provided further, that, in the case of any release described in clause (A) immediately above, the Issuer has delivered an Unrestricted Subsidiary Officer’s Certificate to the Collateral Agent certifying that any such sale or upon such Guarantor becoming an Excluded Subsidiary)other disposition does not violate the terms of this Indenture, any applicable document governing any Pari Passu Secured Indebtedness or the TCEH Senior Secured Facilities;
(4v) as set forth in whole or in partArticle 9, as applicableto property that constitutes less than all or substantially all of the Collateral, with the consent of Holders of 66-2/3% or more at least a majority in aggregate principal amount of Notes the Required Debt then outstanding, voting as a single class (including or, in the case of a release of all or substantially all of the Collateral, with the consent of the Holders of at least 66 2/3% in aggregate principal amount of the Required Debt), 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 ; provided the applicable provisions Issuer has delivered an Officer’s Certificate to the Collateral Agent certifying that any such necessary consents have been obtained and that such release of the Collateral Trust and Intercreditor Agreement and does not violate the other Security Documents;terms of any applicable document governing any Pari Passu Secured Indebtedness or the TCEH Senior Secured Facilities; and
(6) to the extent that any lease is Collateral, upon termination of such lease;
(7vi) with respect to Collateral that is Capital Stock, assets of a Subsidiary Guarantor upon the dissolution or liquidation of the issuer release of such Capital Stock Subsidiary Guarantor from its Subsidiary Guarantee as set forth in Article 10; provided, that is not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to Liens on such assets securing the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paidTCEH Senior Secured Facilities are simultaneously released.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers TCEH or the Guarantorsany Subsidiary Guarantor, as the case may be, with the conditions precedent set forth abovein this Section 11.06, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed without representation or warranty of any kind to the IssuersTCEH, or the GuarantorsSubsidiary Guarantor, as the case may be, the released Collateral. Prior to each proposed release, TCEH and each Subsidiary Guarantor will furnish to the Trustee and the Collateral Agent all documents required by this Indenture and the Security Documents.
(c) The Issuer shall comply with the provisions of TIA §314(b) (including, without limitation, the provision of an initial and annual Opinion of Counsel under TIA §314(b)); provided, that the Issuer shall not be required to comply with TIA §314(b) until this Indenture is qualified pursuant to the TIA. The release of any Collateral from the terms of the 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 Security Documents if and to the extent the Collateral is released pursuant to this Indenture, the Security Documents or the Intercreditor Agreement or upon the termination of this Indenture. Notwithstanding any provision to the contrary herein, as and when requested in writing by TCEH or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver UCC financing statement amendments or releases (or amendments or releases to other perfection documents) (which shall be prepared by TCEH or any Subsidiary Guarantor) 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. If requested in writing by TCEH or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by TCEH or any Subsidiary Guarantor) and to take such other action as TCEH or any Subsidiary Guarantor may 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 Agreements. The Collateral Agent shall execute and deliver such documents, instruments and statements without representation or warranty of any kind 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 TCEH or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver UCC financing statement amendments or releases (or amendments or releases to other perfection documents) (which shall be prepared by TCEH or any Subsidiary Guarantor) solely to the extent necessary to delete Excluded Assets from the description of assets in any previously filed financing statements or other perfection documents. If requested in writing by TCEH or any Subsidiary Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by TCEH) and to take such other action as TCEH or any Subsidiary Guarantor may request to evidence or confirm that Excluded Assets 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 without representation or warranty of any kind and shall take all such actions promptly upon receipt of such instructions from the Trustee.
Appears in 1 contract
Samples: Indenture (Energy Future Intermediate Holding CO LLC)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral securing the Notes will automatically and without the need for any further action by any Person (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 dischargedreleased:
(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 extent it continues to constitute) Excluded Assetscircumstances;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12XII hereof; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8VIII hereof;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Subsidiary Guarantor (other than to the Company Issuers or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Subsidiary Guarantor that has been released from its Subsidiary Note Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Note Guarantee (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-66 2/3% or more in aggregate principal amount of Notes (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 the applicable provisions of the Security Documents, 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 hereofABL Intercreditor Agreement; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Note Guarantees, the Security Documents, the Collateral Trust and Intercreditor Agreement and the other Security Documents ABL Intercreditor Agreement have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any the action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of CollateralAgent, the Issuers and such Guarantor, as applicable, each Subsidiary Guarantor will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 13.4 and 13.05 hereof 13.5 to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee Agent and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral TrusteeAgent); and
(4) upon qualification of the Indenture under the TIA subject to and only to the extent applicable pursuant to Section 11.2(d), any other documents or instruments required to be delivered pursuant to TIA §314(d).
(c) Upon compliance by the Issuers or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuers or such Subsidiary Guarantor to the Trustee and Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, or the Subsidiary Guarantors, as the case may be, the released CollateralXxxxxxxxxx.
(x) For purposes of the TIA, the release of any Collateral from the terms of the Security Documents 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 Security Documents if and to the extent the Collateral is released pursuant to this Indenture and the Security Documents or upon the termination of this Indenture.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedSecurities:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 8.1(a) hereof;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance legal defeasance as set forth in Article 8Section 8.1(b) hereof;
(34) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of its Restricted Subsidiary) Subsidiaries in a transaction not prohibited permitted by Section 3.5 of this Indenture or the Security Documents at Collateral Documents, to the time extent of such salethe interest sold or disposed of, transfer (B) that is cash or Net Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.5(a); (C) that is of the 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 or as therein provided, (bD) that constitute Excess Collateral Proceeds that remain unexpended after the conclusion of a Collateral Disposition Offer conducted in accordance with the Indenture, (E) that is owned or at any time acquired by a Guarantor Subsidiary of the Company that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee thereof, or (including F) otherwise in connection accordance with the designation of a Guarantor as an Unrestricted Subsidiary Article II or upon such Guarantor becoming an Excluded Subsidiary)Article X;
(45) in whole or in part, as applicableto 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 66-2/3% or more in aggregate principal amount of Notes each Holder affected thereby (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
(5) in part; provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses this subsection (1a), (2) and (4) above, all amounts owing to the Trustee under this Indenture and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Company and such Guarantor, as applicable, each Subsidiary will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:the Indenture (other than payments received from the Intercompany Note and applied in accordance with Section 11.5(a)):
(1) an Officer’s Officers' Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers' Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee);
(4) all documents required by TIA Section314(d), the Collateral Documents and this Indenture; and
(5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA Section314(d), the Collateral Documents and this Indenture.
(c) Upon compliance by For purposes of the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth aboveTIA, the Trustee release of any Collateral from the terms of the Collateral Documents 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 Trustee shall promptly, Documents if and to the extent the Collateral is released pursuant to the Indenture or the Collateral Documents or upon the request and at the expense termination of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateralthis Indenture.
Appears in 1 contract
Samples: Indenture (Imco Recycling Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will shall automatically and without the need for any further action by any Person (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 dischargedreleased:
(1i) 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 extent it continues to constitute) Excluded Assetscircumstances;
(2ii) in whole upon:
(a1) satisfaction and discharge of this Indenture as set forth in Article 12Section 8.1(a);
(2) a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.1(b); or
(b3) the occurrence of a Legal Defeasance or Covenant Defeasance as set forth in Article 8Suspension Period (but only until the Reinstatement Date, if any);
(3iii) in part, as to any property constituting Collateral that (ax) is sold, transferred or otherwise disposed of by either of the Issuers Company or any Subsidiary Guarantor (other than to the Company or another Restricted SubsidiarySubsidiary Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (by) is owned or at any time acquired 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 or upon such Guarantor becoming an Excluded Subsidiary);
(4iv) pursuant to an amendment in accordance with Article IX;
(v) in whole or as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in part, as applicable, accordance with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes)Section 10.2;
(5vi) 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents Intercreditor Agreement; and
(vii) in whole or in part, with the consent of Holders of 662⁄3% in aggregate principal amount of the Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) then outstanding. For the Collateral Trust and Intercreditor Agreement) to such release avoidance of Collateral have been complied with and that such release of Collateral is permitted by this Indenturedoubt, the other Note Documents Company and the Security Documents (including, without limitation, Subsidiary Guarantors will not be required to comply with all or any portion of Section 314(d) of the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)TIA.
(cb) Upon compliance by In connection with any termination or release of any Liens in all or any portion of the Issuers Collateral pursuant to this Indenture or any of the Collateral Documents, the Trustee shall, or shall cause the Collateral Agent to, promptly, at the sole expense of the Company, execute, deliver or acknowledge all documents, instruments and releases that have been requested, in writing, to release, reconvey to the Company and/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, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense written directions of the Issuers or such Guarantors, cause to be released and reconveyed to Company and/or the Issuers, or the GuarantorsSubsidiary Guarantor, as the case may be.
(c) The release of any Collateral from the terms of the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to this Indenture or upon termination of this Indenture. 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) 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 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, at the sole expense of the Company, 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 reasonably request to evidence or confirm that such property or assets not required to be subject to a Lien under the Collateral Documents described in the immediately preceding sentence has been released Collateralfrom 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 written instructions from the Company, any Subsidiary Guarantor or the Trustee.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral securing the Notes will be automatically and without released under any one or more of the need for any further action by any Person following circumstances (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:each a “Lien Release Event”):
(1i) in whole or in In part, as applicableto any property or assets constituting Collateral, as to all enable the Issuer or any portion its Restricted Subsidiaries to consummate the disposition of such property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances or which has become (and only assets to the extent it continues not prohibited under Section 4.10;
(ii) in the case of a Guarantor that is released from its Guarantee with respect to constitutethe Notes in accordance with Section 11.06, the property and assets of such Guarantor shall be released;
(iii) upon any such property or assets becoming Excluded Assets;
(2iv) as permitted by the Intercreditor Agreements; or
(v) as permitted by Section 9.02(f).
(b) The security interests in whole all Collateral securing the Notes will be automatically released upon:
(ai) 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 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 as set forth in accordance with Article 12XII); or
(bii) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by under this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (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 Sections 8.02 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)8.03.
(c) Upon compliance In connection with a release of Collateral, 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 Issuers Issuer in connection with a release of Guarantee or the Guarantors, as the case may be, with the conditions precedent set forth above, 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 Section 9-513(c) of the UCC, and the Issuer and the Guarantors shall have the rights provided by Section 9-509 of the UCC with respect to any such demand; provided that the applicable time period set forth in Section 9-513(c) of the UCC shall be deemed to be three Business Days.
(d) Upon the receipt of an Officer’s Certificate from the Issuer, as described in Section 10.10(c), if applicable, and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer, the Notes Collateral Agent and/or the Trustee shall promptlyshall, upon the request and at the expense Issuer’s expense, execute, deliver or acknowledge such instruments or releases reasonably requested in writing by the Issuer to evidence the release of the Issuers or such Guarantors, cause any Collateral permitted to be released and reconveyed pursuant to the Issuers, this Indenture or the Guarantors, as Notes Security Documents or the case may be, the released CollateralEqual Priority Intercreditor Agreement.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect 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 extent it continues to constitute) Excluded Assets;
(2) in whole uponObligations:
(a) satisfaction and discharge in whole, upon payment in full of this Indenture as set forth in Article 12; orthe Obligations;
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property constituting Collateral (i) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers Borrower or any Guarantor (other than to the Company or another of its Restricted Subsidiary) Subsidiaries in a transaction permitted by Section 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; (ii) that is cash or Net Available Cash withdrawn from the Security Documents at the time Collateral Accounts for any one or more purposes permitted by subsection (a) of such saleSection 6.04 or for any other expenditures not prohibited by this Agreement; (iii) with respect to ABL Collateral, transfer 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 Credit Facility resulting in the release of the Lien on such Collateral securing the ABL Credit Facility; or (bD) otherwise in accordance with, and as expressly provided for under, this Agreement or any Collateral Document;
(c) that is owned or at any time acquired by a Subsidiary Guarantor that has been is 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);Agreement; and
(4d) in whole or in part, as applicable, with the consent of Holders Lenders of 66sixty six and two-thirds percent (66- 2/3% or more %) in aggregate principal amount of Notes the Loans, (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(5e) in part, in accordance with whole if the applicable provisions holders of the Collateral Trust and Intercreditor Agreement and Senior Secured Notes agree to release 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 Liens covering all of the issuer of such Capital Stock that is not prohibited by this IndentureCollateral; or
(8) as described in Section 9.02 hereof; provided provided, that, in the case of any release in whole pursuant to clauses (1this Section 9.09(a), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee Administrative Agent under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Loan Documents in its capacity as such have been paid.
(b) To . For the extent a proposed release of Collateral is not automatic real properties that have a fair market value of $10,000,000 or more and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of constitute Non-ABL Collateral, the Issuers Borrower and such Guarantor, as applicable, each Subsidiary Guarantor will furnish to the Trustee and the Collateral TrusteeAdministrative Agent, upon request, prior to each proposed release of such Non-ABL Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
Agreement an Officers’ Certificate (1i) an Officer’s Certificate requesting such release or acknowledgement;
and (2ii) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Agreement and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) with. Upon compliance by the Issuers Borrower or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or Administrative Agent shall direct the Term Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause Agent to be promptly released and reconveyed to the IssuersBorrower, or the its Subsidiary Guarantors, as the case may be, the released Non-ABL Collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(1i) in whole whole, upon 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 and the Security Documents that are due and payable at 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 prior to the extent it continues to constitute) Excluded Assetstime of such principal, together with accrued and unpaid interest and premiums, if any, is paid;
(2ii) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orArticle12 hereof;
(biii) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 88 hereof;
(3iv) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers Issuer or any Guarantor of its Restricted Subsidiaries (other than to the Company Issuer or another Restricted Subsidiarya Guarantor) in a transaction permitted by Section 4.10 and by the Security Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture or and the Security Documents at the time of such sale, transfer or disposition Documents; or (bB) is owned or that at any time acquired becomes an Excluded Property (as defined in the Security Documents) pursuant to a transaction permitted by this Indenture;
(v) that is owned by a Guarantor that has been is 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);; and
(4vi) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (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 Article 9 hereof; provided . provided, that, in the case of any release in whole pursuant to clauses (1i), (2ii) and (4iii) above, all amounts owing to the Trustee and the Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Issuer and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement (and, to the extent required by the Trust Indenture Act, prior to the proposed release of such release any other Collateral) pursuant to the Security Documents and this Indenture:;
(1i) an Officer’s Officers’ Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release including the delivery to the Trustee of Collateral is permitted by all documents required under this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor AgreementSection 11.05(b); and;
(3ii) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(ciii) all documents required by this Indenture, the Security Documents and the Intercreditor Agreements; and
(iv) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this Indenture, the Security Documents and the Intercreditor Agreements and such release is authorized or permitted by the Security Documents and this Indenture. Upon compliance by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuer or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersIssuer, or the Guarantors, as the case may be, the released Collateral.
(c) The release of any Collateral in accordance with the terms of this Indenture and the 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 Security Documents if and to the extent the Collateral is released pursuant to this Indenture, the Security Documents or the Intercreditor Agreements or upon the termination of this Indenture. Any person may rely on this Section 11.05(c) in delivering a certificate requesting release of any Collateral.
Appears in 1 contract
Samples: Indenture (West Corp)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes, but the failure to deliver such notice shall not affect such release) terminate Intermediate Holdings Guarantee and be dischargedthe Note Guarantees, as applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 813;
(3) in partwhole, upon a legal defeasance or covenant defeasance as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article 8;
(4) in whole or in part, as applicableto any asset constituting Collateral in accordance with, and as expressly provided for under, the Collateral Documents, the Intercreditor Agreements and this Indenture;
(5) with the consent of Holders of 66sixty-six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of Notes (including the Notes, 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) with respect to the extent that any lease is Collateral, assets of Intermediate Holdings or a Note Guarantor upon termination release of Intermediate Holdings from its Intermediate Holdings Guarantee or such lease;Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) with respect to enable the disposition of property or other assets that constitute Collateral that is Capital Stock, upon to the dissolution or liquidation of the issuer of such Capital Stock that is extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid4.10.
(b) To the extent a proposed release of Collateral is not automatic The Issuer and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Note Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 14.07(a)(1) through (7) or acknowledgement of such release pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with; (3) solely in the case of a release described in Section 14.07(a)(1) through (5), an Opinion of Counsel in accordance with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor AgreementSection 15.02(ii); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Samples: Indenture (Domus Holdings Corp)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes, but the failure to deliver such notice shall not affect such release) terminate Intermediate Holdings Guarantee and be dischargedthe Note Guarantees, as applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 813;
(3) in partwhole, upon a legal defeasance or covenant defeasance as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article 8;
(4) in whole or in part, as applicableto any asset constituting Collateral (A) if all other Liens on that 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 in accordance with, and as expressly provided for under, the Collateral Documents, the Intercreditor Agreements and this Indenture;
(5) with the consent of Holders of 66sixty-six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of Notes (including the Notes, 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) with respect to the extent that any lease is Collateral, assets of Intermediate Holdings or a Note Guarantor upon termination release of Intermediate Holdings from its Intermediate Holdings Guarantee or such lease;Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) with respect to enable the disposition of property or other assets that constitute Collateral that is Capital Stock, upon to the dissolution or liquidation of the issuer of such Capital Stock that is extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid4.10.
(b) To the extent a proposed release of Collateral is not automatic The Issuer and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Note Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 14.07(a)(1) through (7) or acknowledgement of such release pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with;
(3) solely in the case of a release described in Section 14.07(a)(1) through (5), an Opinion of Counsel in accordance with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor AgreementSection 15.02(ii); and
(34) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers Issuer, Intermediate Holdings or the Note Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Issuer or Intermediate Holdings or such Note Guarantor to the Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersIssuer, Intermediate Holdings or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer in connection therewith.
(d) 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 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 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 be deemed to relate to such after-acquired property or asset to the same extent and with the same force and effect. If, after the Collateral is released 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 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 other representative under such new First Lien Priority Indebtedness or First Lien Junior Priority Indebtedness substantially the same 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release shall be released with respect to the Collateral TrusteeSecurities and the Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1i) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding additional interest and premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsSecurities;
(2ii) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 1201 hereof;
(biii) in whole, upon a Legal Defeasance or Covenant Defeasance legal defeasance as set forth in Article 8Section 402;
(3iv) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either the Issuer or any of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) Guarantors in a transaction permitted by Section 1012 and by the Security Documents or not otherwise prohibited hereby and thereby, to the extent of the interest sold or disposed of, or otherwise permitted by this Indenture and the Security Documents, if all other Liens on that asset securing the First Lien Obligations and any Pari Passu Secured Indebtedness then secured by that asset, including all commitments thereunder, are released; (B) that is cash withdrawn from the Collateral Accounts for any purpose not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition Documents; or (bC) that is owned or at any time acquired by a Guarantor that has been otherwise released from its Subsidiary Guarantee in accordance with with, and as expressly provided for under, this Indenture, concurrently with Indenture and 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)Security Documents;
(4v) as set forth in whole or in partSection 902, as applicableto property that constitutes (x) less than all or substantially all of the Collateral, with the consent of Holders of 66-2/3% or more at least a majority in aggregate principal amount of Notes the Outstanding Securities, voting as a single class or (including y) in the case of a release of all or substantially all of the Collateral, with the consent of the Holders of at least sixty-six and two-thirds percent (662/3%) in aggregate principal amount of the Outstanding Securities, voting as a single class, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);Securities; and
(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;
(7vi) with respect to Collateral that is Capital Stockassets of a Guarantor, upon the dissolution or liquidation of the issuer release of such Capital Stock that is not prohibited by this Indenture; or
(8) Guarantor from its Guarantee as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2set forth under Sections 1013(b) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid1314.
(b) To For the extent a release of each proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers Issuer and such Guarantor, as applicable, will each Guarantor shall furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) , an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of CounselCounsel as required under Section 103, in compliance with Sections 13.04 (i) requesting such release and 13.05 hereof (ii) to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)with.
(c) Upon compliance by the Issuers Issuer or the Guarantorsany Guarantor, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersIssuer, or the Guarantorssuch Guarantor, as the case may be, the released CollateralCollateral in accordance with the directions of the Issuer, or such Guarantor, as the case may be.
(d) The release of any Collateral from the terms of the Security Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the security interests or Liens under this Indenture and the Security Documents if and to the extent the Collateral is released pursuant to this Indenture, the Security Documents or upon the termination of this Indenture.
(e) Notwithstanding any provision to the contrary herein, as and when requested by the Issuer, 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) solely to the extent necessary to delete Excluded Assets from the description of assets in any previously filed financing statements. If requested in writing by the Issuer, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Issuer) and to take such other action as the Issuer may request to evidence or confirm that Excluded Assets described in the immediately preceding sentence has been released from the Liens of each of the Security 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.
(f) Within 30 calendar days following the end of each six-month period beginning on each Interest Payment Date, the Issuer shall deliver an Officers’ Certificate to the Collateral Agent within to the effect that all releases and withdrawals during the preceding six-month period (or, in the case of the first such Officers’ Certificate, since the Issue Date) described in Section 1406(a)(iv) above, were not prohibited by this Indenture.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole to enable the Issuer or in partits Restricted Subsidiaries to consummate the sale, as applicable, as to all or any portion of property subject to such Liens which has been taken by eminent domain, condemnation transfer or other similar circumstances disposition of such property or which has become (and only assets to the extent it continues to constitute) Excluded Assetsnot prohibited under Section 4.07;
(2) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in whole upon:
(a) satisfaction and discharge of accordance with this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8Indenture;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed the case of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Guarantor that has been is released from its Subsidiary Guarantee in accordance with respect to the Notes pursuant to the terms of this Indenture, concurrently with the release of the property and assets 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)Guarantor;
(4) in whole or in part, as applicablepursuant to Section 9.02(g), with the consent of the Holders of 66-2/3at least 75% or more in of the 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 and affected thereby;
(5) in part, in accordance with pursuant to Section 4.15(c); provided that the applicable provisions of Liens on the Collateral Trust and Intercreditor Agreement securing the Notes and the other Security DocumentsNotes 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 extent that any lease is Collateral, upon termination of such lease;
Collateral pursuant clauses (7v) with respect to Collateral that is Capital Stock, upon the dissolution or liquidation and (vi) of the issuer first proviso to Section 2 of such Capital Stock that is not prohibited by the Security Agreement in connection with a Qualified Receivables Transaction (including any Receivables Financing) permitted under this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole 7) pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paidArticle 9.
(b) To the extent a proposed release necessary and for so long as required for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Collateral is 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), the Capital Stock of any Subsidiary of the Issuer shall not automatic and requires any action by the Trustee or be included in the Collateral Trustee or if with respect to the Issuers or any Guarantor desire that Notes and shall not be subject to the Trustee or Liens securing the Notes and the Notes Obligations, in each case to the extent set forth in Section 2 of the Security Agreement.
(c) The Liens on the Collateral Trustee acknowledge such release securing the Notes and the Guarantees also will be released upon (i) payment in full of Collateralthe principal of, together with accrued and unpaid interest on, the Issuers Notes and all other Obligations under this Indenture, the Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid or (ii) a defeasance under this Indenture pursuant to Article 8 or discharge of the Issuer’s and the Guarantor, as applicable, ’ Obligations under this Indenture in accordance with this Indenture.
(d) The Issuer and each applicable Guarantor will furnish to the Trustee and Collateral Agent (with a copy to the Collateral Trustee), prior to each proposed release of such Collateral pursuant to Section 11.05(a)(1) through (7), Section 11.05(b), Section 11.05(c) or acknowledgement of such release pursuant to the Security Documents and this IndentureDocuments:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement)with; and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee Agent and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Agent or the Trustee).
(ce) Upon compliance by the Issuers Issuer or the Guarantorsapplicable Guarantor, as the case may be, with the conditions precedent set forth aboveSection 11.05(d), the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, Issuer or the GuarantorsGuarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer in connection therewith.
(f) If the Liens securing the Senior Credit Facility Obligations are released in connection with the repayment (including cash collateralization of 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 Notes Obligations will not be 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 required to execute or direct the Collateral Agent to execute any release, discharge or termination under this Indenture, including without limitation under this
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the Note Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 12.01 hereof;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 88 hereof;
(34) in part, as to any property constituting Collateral Collateral:
(A) that (a) is sold, transferred sold or otherwise disposed of by either the Issuer or any of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) Guarantors in a transaction not prohibited permitted by Section 4.10 or Section 4.18 and by the Collateral Documents (to the extent of the interest sold or disposed of) or otherwise permitted by this Indenture and the Collateral Documents;
(B) that is cash used in the ordinary course of its business or cash or Net Available Cash used for any one or more purposes permitted by Section 4.10(1); or
(C) otherwise in accordance with, or as expressly provided for under, this Indenture, the Intercreditor Agreement, or the Security Documents at the time of such sale, transfer or disposition or Collateral Documents;
(b5) in whole as to all Collateral that is owned or at any time acquired by a Guarantor that has been is released from its Subsidiary Note 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);
(46) in whole or in part, as applicable, with the consent of Holders of 66sixty-six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of the Notes (including 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;; and
(7) upon the taking of Collateral by eminent domain, condemnation or in similar circumstances; provided that any compensation received with respect to Collateral that such taking is Capital Stockapplied in accordance with Section 4.10(1). provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (43) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Note Guarantees, the Collateral Trust Documents, and the Intercreditor Agreement and the other Security Documents have been paidpaid or otherwise provided for to the reasonable satisfaction of the Trustee.
(b) To With respect to the extent a proposed release of Collateral is not automatic and requires any action by Premises, the Trustee Issuer or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such GuarantorGuarantors, as applicablethe case may be, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
. provided, that no Officers’ Certificate pursuant to clauses (c1) and (2) above shall be required for the release of a Lien on Collateral that is sold or pledged in the ordinary course of business to the extent such sale or pledge is permitted by this Indenture. Upon compliance by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersIssuer, or the Guarantors, as the case may be, the released Collateral and, if necessary, the Collateral Agent shall, at the Issuer’s expense, cause to be filed such documents or instruments (that are prepared by the Issuer and provided to the Collateral Agent) as shall be necessary to provide for the release by the Collateral Agent of the released Collateral.
(c) The Issuer shall comply with the applicable provisions of the Trust Indenture Act as they relate to the Collateral. As long as this Indenture is qualified under the Trust Indenture Act, the Issuer shall comply with Section 313(b) and Section 314(d) of the Trust Indenture Act. Any certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an Officer of the Issuer except in cases where Section 314(d) requires that such certificate or opinion be made by an independent engineer, appraiser or other expert, who shall be reasonably satisfactory to the Trustee. Notwithstanding anything to the contrary in this Section 10.06(c), the Issuer shall not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if it determines, in good faith based on advice of counsel (which may be internal counsel), that under the terms of Section 314(d) and/or any interpretation or guidance as to the meaning thereof of the SEC and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) is inapplicable to one or a series of released Collateral.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (Lri Holdings, Inc.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes other Priority Lien Indebtedness or Pari Passu Lien Hedge AgreementsDebt), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 extent it continues to constitute) Excluded AssetsProperty;
(2) in whole upon:
(ai) satisfaction and discharge of this Indenture as set forth in Article 12XI; or
(bii) a Legal Defeasance or Covenant Defeasance as set forth in Article 8VIII;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers Company or any a Subsidiary Guarantor (other than to the Company or another Restricted Subsidiarya Subsidiary Guarantor) in a transaction not prohibited by this Indenture or the Security Collateral Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired 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 or (including in connection 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 designation release of a Guarantor as an Unrestricted such Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)Guarantee;
(4) in whole or in part, as applicable, with the consent of Holders of (i) 66-2/3% or more in aggregate principal amount of 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 and Intercreditor Agreement and the other Security DocumentsAgreement;
(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 hereof; provided that9.02.
(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 clauses clause (15), (2) and (4) above, all amounts owing to the Trustee and extent that such consent of the Holders is required by the applicable provisions of the security document or the Collateral Trust Agreement)) shall be effected by the Collateral Trustee under this Indenture, without the Notes, consent of the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires Holders or any action by on the Trustee or part of the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, Trustee. The Company will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security 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:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)as applicable.
(c) Upon compliance by the Issuers Company or the Guarantorsany Subsidiary Guarantor, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptlyTrustee, upon at the written request and at the sole expense of the Issuers or such GuarantorsCompany, shall promptly cause to be released and reconveyed to the Issuers, 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 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 principal sum of ____________________ DOLLARS [or such greater or lesser amount as may be indicated on the attached Schedule of Increases and Decreases in the 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 the within-mentioned Indenture. U.S. BANK NATIONAL ASSOCIATION, as Trustee By: Authorized Signatory [Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture] [Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will shall automatically and without the any need for any further action by any Person (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 dischargedreleased:
(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 extent it continues to constitute) Excluded Assetscircumstances;
(2) in whole upon:
(ai) satisfaction and discharge of this Indenture as set forth in Article 12Section 8.01(a); or
(bii) a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance of this Indenture as set forth in Article 8Section 8.01(b) and (c);
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers Issuer or any Guarantor (other than to the Company Issuer or another Restricted SubsidiaryGuarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) as set forth in whole or in partSection 9.02(a), as applicableto property that constitutes less than all or substantially all of the Collateral, with the consent of Holders of 66-2/3% or more at least a majority in aggregate principal amount of the Notes outstanding (or, in the case of a release of all or substantially all of the Collateral, with the consent of the Holders of at least seventy-five percent (75%) in aggregate principal amount of the Notes outstanding), including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);; and
(5) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement Security Documents 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paidAgreement.
(b) To The release of any Collateral from the terms of the Security Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to this Indenture or upon termination of this Indenture. The Trustee and each of the Holders each acknowledge that a proposed release of Collateral is or a Lien in accordance with the terms of any Collateral Document and this Article 10 shall not automatic and requires be deemed for any action by purpose to be an impairment of the Trustee or Lien on the Collateral Trustee or if in contravention of the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release terms of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance Notwithstanding any provision to the contrary herein, as and when requested by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent set forth aboveany Guarantor in writing, 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 Issuer or such Guarantor and shall be attached to such request as an exhibit) solely to the extent necessary to delete or release Liens on property or assets not required to be subject to a Lien under the Security Documents from the description of assets in any previously filed financing statements. If requested in writing by the Issuer or any 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 Issuer or such Guarantor and shall be attached to such request as an exhibit) and to take such other action as the Issuer may request to evidence or confirm that such property or assets not required to be subject to a Lien under the Security Documents described in the immediately preceding sentence has been released from the Liens of each of the Security Documents. The Collateral Agent shall execute and deliver such documents, instruments and statements promptly upon receipt of such instructions from the Issuer, any Guarantor or the Trustee.
(d) In no event shall the Trustee or Collateral Trustee Agent be obligated to execute or deliver any document evidencing any release or reconveyance without receipt of an Opinion of Counsel and Officer’s Certificate, each stating that such release complies with this Indenture, the Intercreditor Agreement and the Security Documents, and conforming to the requirements of Section 12.02 and Section 12.03 hereof. To the extent applicable, the Issuer shall promptlycause TIA § 313(b), upon relating to reports, and TIA § 314(d), relating to the request release of property or securities from the lien and at security interest of this Indenture and relating to the expense substitution therefor of the Issuers any property or such Guarantors, cause securities to be released and reconveyed subjected to the Issuerslien and security interest of this Indenture, or the Guarantors, as the case may be, the released Collateralto be complied with.
Appears in 1 contract
Samples: Indenture (Symbion Inc/Tn)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedSecurities:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest (including Additional Interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any), condemnation or other similar circumstances or which has become (premium, if any, and only to Additional Amounts, if any, on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 8.1(a) hereof;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance legal defeasance as set forth in Article 8Section 8.1(b) hereof;
(34) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of its Restricted Subsidiary) Subsidiaries in a transaction not prohibited permitted by this Indenture Section 3.5 or the Security Documents at Collateral Documents, to the time extent of such salethe interest sold or disposed of, transfer (B) that is cash or Net Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.5(a); (C) that is of the 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 or as therein provided, (bD) that constitute Excess Collateral Proceeds that remain unexpended after the conclusion of a Collateral Disposition Offer conducted in accordance with this Indenture, (E) that is owned or at any time acquired by a Guarantor Subsidiary of the Company that 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 Guarantee (including in connection 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 designation of a Guarantor SEC (or any other governmental agency) or (G) otherwise in accordance with, and as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);expressly provided for under, this Indenture, including, without limitation, Article X; and
(45) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes each Holder affected thereby (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
(5) in part; provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1this Section 11.6(a), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the NotesSecurities, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Company and such Guarantor, as applicable, each Subsidiary Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c4) all documents required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreement; and
(5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreement. Upon compliance by the Issuers Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Subsidiary Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Subsidiary Guarantors, as the case may be, the released Collateral.
(c) For purposes of the TIA, the release of any Collateral from the terms of the Collateral Documents 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, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture.
Appears in 1 contract
Samples: Indenture (Coastal Paper CO)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will shall automatically and without the any need for any further action by any Person (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 dischargedreleased:
(1i) 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 extent it continues to constitute) Excluded Assetscircumstances;
(2ii) in whole upon:
(a1) satisfaction and discharge of this Indenture as set forth in Article 12Section 8.1(a); or
(b2) a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance of this Indenture as set forth in Article 8Section 8.1(b);
(3iii) in part, as to any property constituting Collateral that (ax) is sold, transferred or otherwise disposed of by either of the Issuers Company or any Subsidiary Guarantor (other than to the Company or another Restricted SubsidiarySubsidiary Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (by) is owned or at any time acquired by a Subsidiary Guarantor that has been released from its Subsidiary Guarantee Guaranty in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee Guaranty (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4iv) pursuant to an amendment in accordance with Article IX;
(v) in whole or as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guaranty in part, as applicable, accordance with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);Section 10.2; and
(5vi) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement Documents 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paidAgreement.
(b) To the extent a proposed In connection with any termination or release of any Liens in all or any portion of the Collateral is not automatic and requires pursuant to this Indenture or any action by of the Collateral Documents, the Trustee shall, or shall cause the Collateral Trustee Agent to, promptly execute, deliver or if the Issuers or any Guarantor desire acknowledge all documents, instruments and releases that the Trustee or the Collateral Trustee acknowledge such release of Collateralhave been requested to release, the Issuers and such Guarantor, as applicable, will furnish reconvey to the Trustee and Company and/or the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers 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, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense directions of the Issuers or such Guarantors, cause to be released and reconveyed to Company and/or the Issuers, or the GuarantorsSubsidiary Guarantor, as the case may be.
(c) The release of any Collateral from the terms of the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to this Indenture or upon termination of this Indenture. 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 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 Lien under the Collateral Documents described in the immediately preceding sentence has been released Collateralfrom 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 an 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will shall automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(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 extent it continues to constitute) Excluded Assetscircumstances;
(2) in whole whole, upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12under Section 12.01; or
(b) a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance of this Indenture as set forth in described under Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers Issuer or any Guarantor (other than to the Company Issuer or another Restricted SubsidiaryGuarantor) in a transaction not prohibited by this Indenture or the Security Collateral Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 or upon such Guarantor becoming an Excluded Subsidiary);
(4) that is cash or Net Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 4.10(a);
(5) in whole or in part, as applicable, with the consent of Holders of 66-66 2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);; and
(56) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement Documents and the other Security Documents;
(6) to the extent that any lease is CollateralIntercreditor Agreements, upon termination of such lease;
(7) with respect to Collateral that is Capital Stockprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (45) above, all amounts owing to the Trustee and the Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement Documents and the other Security Documents Intercreditor Agreements have been paid.
(b) To With respect to the extent a proposed release of Collateral is not automatic Premises and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire other principal properties that the Trustee or the Collateral Trustee acknowledge such release of constitute Collateral, the Issuers Issuer and such Guarantor, as applicable, will each Guarantor shall furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) . Upon compliance by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuer or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersIssuer, or the Guarantors, as the case may be, the released Collateral, and the Collateral Agent shall execute and deliver such documents and instruments prepared by the Issuer as the Issuer and the Guarantors may reasonably request to evidence such release without the consent of the Holders of the Notes.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (Postmedia Network Canada Corp.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release shall be released with respect to the Collateral TrusteeSecurities and the Subsidiary Guarantors, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1i) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsSecurities;
(2ii) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 8.1(a) hereof;
(biii) in whole, upon a Legal Defeasance or Covenant Defeasance legal defeasance as set forth in Article 8Section 8.1(b) hereof;
(3iv) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) any of the Subsidiary Guarantors in a transaction permitted by Section 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 Available Cash withdrawn from the Collateral Accounts for any one or more purposes permitted by Section 3.8(a); (C) 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 Facility resulting in the release of the Lien on such Collateral securing the ABL Facility, other than with respect to Trademark Collateral; or (D) otherwise in accordance with, and as expressly provided for under, this Indenture or the Security Documents at the time of such sale, transfer or disposition or Intercreditor Agreement;
(bv) in whole as to all Collateral that is owned or at any time acquired by a Subsidiary Guarantor that has been is 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);; and
(4vi) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more seventy five percent (75%) in aggregate principal amount of Notes the Securities (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
(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 Collateralprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1this Section 11.6(a), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the NotesSecurities, the Subsidiary Guarantees, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To For the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire Premises that the Trustee or the Collateral Trustee acknowledge such release of constitute First-Priority Collateral, the Issuers Company and such Guarantor, as applicable, will each Subsidiary Guarantor shall furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such First-Priority Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) , an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 Counsel as required under Section 12.2 (i) requesting such release and 13.05 hereof (ii) to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)with.
(c) Upon compliance by the Issuers Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the its Subsidiary Guarantors, as the case may be, the released CollateralCollateral in accordance with the directions of the Company, or its Subsidiary Guarantor, as the case may be.
(d) The release of any Collateral from the terms of 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, 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. 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 Assets 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 1 contract
Samples: Indenture (Brunswick Corp)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the Note Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in under Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (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 Documents, the Intercreditor Agreement and this Indenture;
(5) with the other Security Documentsconsent of Holders of 662⁄3% in aggregate principal amount of the Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes);
(6) with respect to the extent that any lease is Collateral, assets of a Subsidiary Guarantor upon termination release of such leaseSubsidiary Guarantor from its Note Guarantee in accordance with Article 10;
(7) with respect to enable the disposition of property or other assets that constitute Collateral that is Capital Stock, upon to the dissolution or liquidation of the issuer of such Capital Stock that is extent not prohibited by this IndentureSection 4.16; orand
(8) in part, as described 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 9.02 hereof11.07(a)(8) shall not exceed $50.0 million; provided that, in the case of any release in whole pursuant to clauses (1), (2), (3) and (4) aboveof this Section 11.07(a), all amounts owing to the Trustee and the Notes Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary GuaranteesNote Guarantee, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral that the Lien on such property or asset is not automatic and requires no longer required to be perfected under the Senior Credit Facility, (i) no actions in any action non-U.S. jurisdiction or required by the Trustee laws of any non-U.S. jurisdiction shall be required to be taken in any non-U.S. jurisdiction to perfect or make enforceable any security interests in assets located or titled outside of the Collateral Trustee or if United States (including any foreign registered intellectual property) and (ii) to the Issuers or extent any Guarantor desire that such Lien 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 Collateral Trustee acknowledge laws of, such release of Collateral, non-U.S. jurisdictions to ensure all corresponding Liens securing the Issuers Notes and such Guarantor, as applicable, the Note Guarantees are similarly no longer perfected.
(c) The Issuer and each Guarantor will furnish to the Trustee and the Notes Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 11.07(a)(1), (2), (3), (5), (6) and (8) or acknowledgement of such release pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Certificate requesting any such release release, filing or acknowledgementother action without recourse, warranty or representation of any kind (express or implied);
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement)with; and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(cd) Upon compliance by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent for any release of Collateral as set forth above, and if required by this Indenture upon delivery by the Issuer or the Guarantors to the Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Notes Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, Issuer or the Guarantors, as the case may be, the released CollateralCollateral and take all other actions reasonably requested by the Issuer in connection therewith.
Appears in 1 contract
Samples: Senior Secured Notes Indenture (DIEBOLD NIXDORF, Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(1) in whole whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on the Notes and all other Notes Obligations under this Indenture, the Note Guarantees and the Collateral Documents that are due and payable at 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 prior to the extent it continues to constitute) Excluded Assetstime of such principal, together with accrued and unpaid interest and premiums, if any, is paid;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orXII hereof;
(b3) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in Article 8Section 8.2 hereof;
(34) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers Company or any Guarantor of its Restricted Subsidiaries (other than to the Company or another Restricted Subsidiarya Guarantor) in a transaction permitted by Section 3.5 and by the Collateral Documents, to the extent of the interest sold or disposed of, and to the extent otherwise not prohibited by this Indenture or and the Security Documents at Collateral Documents, (B) with respect to ABL Collateral pursuant to the time terms of such sale, transfer or disposition the Intercreditor Agreement or (bC) is owned or that at any time acquired becomes an Excluded Asset pursuant to a transaction permitted by this Indenture;
(5) that is owned by a Guarantor that has been is released from its Subsidiary Note 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);; and
(46) in whole or in part, as applicable, with the consent of Holders of 66-2/375% or more 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);
(5) in part, then outstanding 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 9.2 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2), (3), (5) and (46) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents constituting Notes Obligations have been paidpaid in full.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Company and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release including the delivery to the Trustee of Collateral is permitted by all documents required under this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor AgreementSection 11.6(b); and;
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c3) all documents required by this Indenture, the Collateral Documents and the Intercreditor Agreement; and
(4) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by this 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 Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Notes Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantors, as the case may be, the released Collateral.
(c) 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, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture. Any person may rely on this Section 11.6(c) in delivering a certificate requesting release of any Collateral, 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release shall be released with respect to the Collateral TrusteeSecurities and the Subsidiary Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicabletogether with accrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture Indenture;
(3) in whole, upon a legal defeasance as set forth in Article 12; or
(bSection 8.1(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8hereof;
(34) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either the Company or any of the Issuers Subsidiary Guarantors in a transaction permitted by Section 3.7 and by the Collateral Documents (to the extent of the interest sold or disposed of) or otherwise permitted by this Indenture and the Collateral Documents; (B) that is cash or Net Available Cash withdrawn from the Collateral Account for any Guarantor one or more purposes permitted by Section 3.7(a) or for any other expenditures not prohibited by the Indenture; (C) upon 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 Company terms of the Credit Agreement resulting in the release of the Lien on such Collateral securing the Credit Agreement; or another Restricted Subsidiary(D) otherwise in a transaction not prohibited by this accordance with, and as expressly provided for under, the Indenture or the Security Documents at the time of such sale, transfer or disposition or Intercreditor Agreement;
(b5) in whole as to all Collateral that is owned or at any time acquired by a Subsidiary Guarantor that has been is 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);; and
(46) in whole or in part, as applicable, with the consent of Holders holders of 66seventy-2/3% or more five percent (75%) in aggregate principal amount of Notes the Securities (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase ofof Securities); provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (43) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the NotesSecurities, the Subsidiary Guarantees, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralrequired herein, the Issuers Company and such Guarantor, as applicable, will each Subsidiary Guarantor shall furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this the Indenture:
(1) , an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 Counsel as required under Section 13.4 (i) requesting such release and 13.05 hereof (ii) to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)with.
(c) Upon compliance by the Issuers Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the its Subsidiary Guarantors, as the case may be, the released CollateralCollateral in accordance with the directions of the Company, or its Subsidiary Guarantor, as the case may be.
(d) The release of any Collateral from the terms of 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, 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. 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 1 contract
Samples: Indenture (Nebraska Book Co)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will be automatically and without the need for any further action by any Person (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 dischargedunconditionally released:
(1i) in whole, upon payment in full of all of the Second Lien Obligations;
(ii) in whole, upon satisfaction and discharge of this Indenture in accordance with Article VIII;
(iii) in whole, upon a legal defeasance or covenant defeasance as set forth under Article VIII;
(iv) as to any asset constituting Collateral, in accordance with, and as expressly provided for under, the Second Lien Collateral Documents and this Indenture; and
(v) 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 extent it continues to constitute) Excluded Assets;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3at least 662/3% or more 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);
(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 provided under Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid9.2.
(b) To the extent a proposed release of Collateral is not automatic The Issuer and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Secured Notes Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Sections 11.3(a)(i) through (v) or acknowledgement of such release pursuant to the Security Documents and this IndentureSecond Lien Collateral Documents:
(1i) 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 or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof 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;
(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 other Note Second Lien Collateral Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) Agreement relating to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement)with; and
(3iv) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and or the Secured Notes Collateral TrusteeAgent).
(c) Upon compliance by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Issuer or such Guarantor to the Trustee or an Opinion of Counsel to the Collateral effect that such conditions precedent have been complied with, the Trustee shall promptly, upon direct the request and at the expense of the Issuers or such Guarantors, Secured Notes Collateral Agent to promptly cause to be released and reconveyed to the Issuers, Issuer or the Guarantorsrelevant Guarantor, as the case may be, the released Collateral, without recourse, representation or warranty of any kind, and take all other actions reasonably requested by the Issuer in connection therewith, at the Issuer’s expense.
(d) 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 this Indenture prior to delivering such documentation.
Appears in 1 contract
Samples: Indenture (Ch2m Hill Companies LTD)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8VIII;
(3) in partwhole, upon a legal defeasance or covenant defeasance as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article VIII;
(4) in whole or in part, as applicableto any asset constituting Collateral, in accordance with, and as expressly provided for under, the Security Documents and this Indenture;
(5) with the consent of Holders of 66-2/3at least 66.7% or more in aggregate principal amount of Notes (including the Notes, 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 DocumentsNotes as provided under Section 9.2;
(6) with respect to assets of a Subsidiary Guarantor, upon release of such Subsidiary Guarantor from its Guarantee with respect to the extent that Term B Credit Agreement and any lease is Collateral, upon other Parity Lien Debt other than by reason of payment under or the termination or repayment of the Term B Credit Agreement or such lease;other Parity Lien Debt; and
(7) with respect in part, to enable the disposition of property or other assets that constitute Collateral that is Capital Stock, upon to the dissolution or liquidation of the issuer of such Capital Stock that is extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid3.7.
(b) To the extent a proposed release of Collateral is not automatic The Issuer and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Secured Notes Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 11.8(a)(1) through (6) or acknowledgement of such release pursuant to the Security Documents and this IndentureDocuments:
(1) an Officer’s Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with;
(3) solely in the case of a release described in Section 11.8 (a)(1) through (5), an Opinion of Counsel in accordance with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor AgreementSection 12.2(ii); and
(34) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and or the Notes Secured Collateral TrusteeAgent).
(c) Upon compliance by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Issuer or such Guarantor to the Trustee or an Opinion of Counsel to the Collateral effect that such conditions precedent have been complied with, the Trustee shall promptly, upon direct the request and at the expense of the Issuers or such Guarantors, Secured Notes Collateral Agent to promptly cause to be released and reconveyed to the Issuers, Issuer or the Guarantorsrelevant Guarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer in connection therewith, at the Issuer’s expense.
(d) Notwithstanding the foregoing, if the Liens securing the Priority Lien Debt and Parity Lien Debt (other than the Notes) are released in connection with the repayment (including cash collateralization of letters of credit) of the Priority Lien Debt and such Parity Lien Debt in full and termination of the commitments thereunder, 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 Priority Lien Debt and such Parity Lien Debt 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 Secured Notes Collateral Agent to exercise remedies to the extent such remedies are permitted under Article VI 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 Priority Lien Debt and Parity Lien Debt (other than the Notes) are released but 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 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 Priority Lien Debt and Parity Lien Debt immediately prior to such release, if any) and, with respect to Premises, deliver such title insurance policies, certificates, opinions of counsel and surveys as required under Section 11.6, as are required under this Indenture and the Security Documents to vest in the Secured Notes 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) and the 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 be deemed to relate to such after-acquired property or asset to the same extent and with the same force and effect.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon Issuer and the Guarantors are entitled to the releases of property and other assets included in the Collateral will no longer secure from the Liens securing the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right related Note Guarantees, as applicable, under any one or more of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 dischargedfollowing circumstances:
(1) in whole 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 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 prior to the extent it continues to constitute) Excluded Assetstime such principal, together with accrued and unpaid interest and premium, if any, are paid;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8IX;
(3) in partwhole, upon a legal defeasance or covenant defeasance with respect to such series as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article IX;
(4) in whole or in part, as applicableto 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 66-2/3at least 662⁄3% or more in aggregate principal amount of Notes (including such series of Notes, 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 such series of the Collateral Trust and Intercreditor Agreement and the other Security DocumentsNotes as provided under Section 8.02;
(6) as to the extent property and assets of a Subsidiary Guarantor that any lease is Collateral, upon termination of such leasereleased from its Note Guarantee in accordance with Section 10.03;
(7) with respect in part, as to Collateral that is Capital Stockany property or assets constituting Collateral, upon to enable the dissolution or liquidation of Issuer and/or Guarantors to consummate the issuer disposition of such Capital Stock property or other assets to a Person that is not the Issuer or a Guarantor to the extent not prohibited by this Indenture; orSection 4.08;
(8) as described to any property or assets that are Excluded Assets;
(9) in Section 9.02 hereof; provided that, connection with any enforcement action taken by the Collateral Agents (as defined in the case First Lien and Third Lien Intercreditor Agreement) in accordance with the terms of any 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 in whole pursuant to clauses (1)accompanied by an Officer’s Certificate that such release is permitted under the terms of the Indenture and the First Lien Notes Security Documents, (2) and (4) aboveas applicable, all amounts owing to the Trustee and the Collateral Agent shall execute, deliver or acknowledge (at the Issuer’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the 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 under this Indenture, the Notes, the Subsidiary Guarantees, nor the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires Agent shall be liable for any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralundertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any First Lien Notes Security Document to the Issuers and such Guarantorcontrary, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent shall not be under any obligation to release any such Lien and security interest, prior to each proposed release or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)Certificate.
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right Subject to Section 6.1 of the Holders to Intercreditor Agreement, the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedSecurities:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(bSection 10.1(a) a Legal Defeasance or Covenant Defeasance as set forth in Article 8hereof;
(3) in whole, upon a legal defeasance as set forth in Article VIII hereof;
(4) 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 (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) of their Subsidiaries in a transaction not prohibited permitted by this Indenture or the Security Documents at Documents, to the time extent of such salethe interest sold or disposed of, transfer or (B) that is of the nature described in the proviso in the definition of “Asset Sale” and is subject to a disposition or as therein provided, (bC) that is owned or at any time acquired by a Guarantor Subsidiary of the Issuers that has been released from its Subsidiary Guarantee obligations under the Guaranty in accordance with this Indenture, concurrently with the release thereof, (D) that is 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 Securities Act, due to the fact that such shares of such Subsidiary Guarantee (including in connection Subsidiary’s Capital Stock secures the Securities, to file separate financial statements with the designation of a Guarantor SEC (or any other governmental agency), or (E) otherwise in accordance with, and as an Unrestricted Subsidiary expressly provided for under, this Indenture, including, without limitation, Article X, or upon such Guarantor becoming an Excluded Subsidiary);the Security Documents; or
(45) in whole or in part, as applicable, with the consent of Holders of 66-2/3% 66⅔% or more in aggregate of the outstanding principal amount of Notes the Securities, unless such release involves all or substantially all of the Collateral, in which case such release will require the consent of each Holder affected thereby (including with respect to any Conru/Xxxxxxxx Definitive Security, the consent of any Conru/Xxxxxxxx Affiliate affected thereby) (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
. The Holders of Conru/Xxxxxxxx Definitive Securities shall be entitled to vote for purposes of this clause (5) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement and the other Security Documents;
(6) prior to the extent that any lease is Collateral, upon termination commencement 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paida Bankruptcy Event.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c4) all documents required by TIA §314(d), this Indenture and the Security Documents; and
(5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and the Security Documents. Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuers or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Senior Lien Collateral Trustee Agent shall promptly, upon the request be authorized to release and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed reconvey to the Issuers, or the Guarantors, as the case may be, the released Collateral, unless otherwise specified in the Security Documents.
(c) For purposes of the TIA, to the extent required, the release of any Collateral from the terms of the Security Documents 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 Security Documents if and to the extent the Collateral is released pursuant to this Indenture or the Security Documents or upon the termination of this Indenture.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedSecurities:
(1i) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsSecurities;
(2ii) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 8.1(a) hereof;
(biii) in whole, upon a Legal Defeasance or Covenant Defeasance legal defeasance as set forth in Article 8Section 8.1(b) hereof;
(3iv) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of its Restricted Subsidiary) Subsidiaries in a transaction permitted by Section 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 Available Cash withdrawn from the Collateral Accounts for any one or more purposes permitted by subsection (a) of Section 3.7 or for any other expenditures not prohibited by this Indenture; (C) 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 Credit Facility resulting in the release of the Lien on such Collateral securing the ABL Credit Facility; or (D) otherwise in accordance with, and as expressly provided for under, this Indenture or the Security Documents at the time of such sale, transfer or disposition or Intercreditor Agreements;
(bv) that is owned or at any time acquired by a Subsidiary Guarantor that has been is 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);; and
(4vi) in whole or in part, as applicable, with the consent of Holders of 66sixty six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of Notes the Securities (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
(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 Collateralprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1this Section 11.6(a), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the NotesSecurities, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement Documents and the other Security Documents Intercreditor Agreements have been paid.
(b) To For the extent a proposed release of Collateral is not automatic and requires any action by the Trustee real properties that have a fair market value of $10.0 million or the Collateral Trustee or if the Issuers or any Guarantor desire more that the Trustee or the Collateral Trustee acknowledge such release of constitute Non-ABL Collateral, the Issuers Company and such Guarantor, as applicable, each Subsidiary Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Non-ABL Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
Indenture an Officers’ Certificate (1i) an Officer’s Certificate requesting such release or acknowledgement;
and (2ii) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)with.
(c) Upon compliance by the Issuers Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the its Subsidiary Guarantors, as the case may be, the released Non-ABL Collateral.
(d) The release of any Collateral from the terms of the Collateral Documents 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, 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. 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 request to evidence or confirm that Excluded Property 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 1 contract
Samples: Indenture (Smithfield Foods Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest (including Special Interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any) and premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orXII hereof;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance legal defeasance as set forth in Article 8Section 8.2 hereof;
(34) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of its Restricted Subsidiary) Subsidiaries in a transaction permitted by Section 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 3.5(a) hereof; (C) 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 Credit Facility resulting in the release of the Lien on such Collateral securing the ABL Credit Facility; (D) 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 of Regulation S-X under the Securities Act, due to the 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) otherwise in accordance with, and as expressly provided for under, this Indenture or the Security Documents at the time of such sale, transfer or disposition or Intercreditor Agreement;
(b5) that is owned or at any time acquired by a Guarantor that has been is released from its Subsidiary Note 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);; and
(46) in whole or in part, as applicable, with the consent of Holders of 66-2/375% or more in aggregate principal amount of the Notes (including 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 Collateralprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), ) through (2) and (46) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Note Guarantees, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Company and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such First Priority Collateral or acknowledgement (and, to the extent required by the TIA, prior to the proposed release of such release any other Collateral) pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c3) all documents required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreement; and
(4) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture, the Collateral Documents and the Intercreditor Agreement. Upon compliance by the Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantors, as the case may be, the released Collateral.
(c) For purposes of the TIA, the release of any Collateral from the terms of the Collateral Documents 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, the Collateral Documents or the Intercreditor Agreement or upon the termination of this Indenture.
Appears in 1 contract
Samples: Indenture (Easton-Bell Sports, Inc.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will shall automatically and without the any need for any further action by any Person (other than notice of such release be released only with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(1i) 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 extent it continues to constitute) Excluded Assetscircumstances;
(2ii) in whole upon:
(a1) satisfaction and discharge of this Indenture as set forth in Article 12Section 8.01(a); or
(b2) a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance of this Indenture as set forth in Article 8Section 8.01(b);
(3iii) in part, as to any property constituting Collateral that (ax) is sold, transferred or otherwise disposed of by either of the Issuers Company or any Subsidiary Guarantor (other than to the Company or another Restricted Subsidiarya Subsidiary Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (by) is owned or at any time acquired 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 or upon such Guarantor becoming an Excluded Subsidiary);
(4iv) 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 (x) released from its guarantee of the First Lien Debt that required such Subsidiary to become a Subsidiary Guarantor hereunder or (y) released from its Subsidiary Guarantee in part, as applicable, accordance with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);Section 10.02; and
(5vi) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement Documents 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paidAgreements.
(b) To the extent a proposed In connection with any termination or release of any Liens in all or any portion of the Collateral is not automatic and requires pursuant to this Indenture or any action by of the Collateral Documents, the Trustee shall, or shall cause the Junior Lien Collateral Trustee Agent to, promptly execute, deliver or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralall documents, the Issuers instruments and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
releases (1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form and substance reasonably satisfactory to the Trustee and Collateral Trustee and shall provide Agent) that the have been requested release is without recourse or warranty to release, reconvey to the Trustee and Collateral Trustee).
(c) Upon compliance by Company and/or the Issuers 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, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense directions of the Issuers or such Guarantors, cause to be released and reconveyed to Company and/or the Issuers, or the GuarantorsSubsidiary Guarantor, as the case may be.
(c) The release of any Collateral from the terms of the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to this Indenture or upon termination of this Indenture. 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 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 Lien under the Collateral Documents described in the immediately preceding sentence has been released Collateralfrom 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 an 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the Note Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to including premium, if any, on 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 AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)Article 8;
(4) in whole or in part, as applicableto any asset constituting Collateral in accordance with, and as expressly provided under, the provisions of the Collateral Documents, the Pari Passu Intercreditor Agreement (if any) and this Indenture;
(5) with the consent of Holders of 66-at least 66 2/3% or more in aggregate principal amount of Notes (including the Notes, 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) with respect to the extent that any lease is Collateralassets of a Guarantor, upon termination release of such lease;Guarantor from its Note Guarantee in accordance with Article 11; and
(7) with respect to enable the disposition of property or other assets that constitute Collateral that is Capital Stock, upon to the dissolution or liquidation of the issuer of such Capital Stock that is extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof4.10; provided that, in the case of any release in whole pursuant to clauses (1), (2), (3) and (4) aboveof this Section 10.07(a), all amounts owing to the Trustee and the Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary GuaranteesNote Guarantee, the Collateral Trust and Pari Passu Intercreditor Agreement (if any) and the other Security Collateral Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the The Issuers and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 10.07(a)(1) through (7) or acknowledgement of such release pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with;
(3) solely in the case of a release described in Section 10.07(a)(1) through (5), an Opinion of Counsel of the Issuers in accordance with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor AgreementSection 13.04(2); and
(34) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers or the Guarantorsa Guarantor, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, and if required by this Indenture upon the request and at the expense of delivery by the Issuers or Holdings or such GuarantorsGuarantor to the Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee and the Collateral Agent shall promptly cause to be released and reconveyed to the Issuers, Holdings or the Guarantorsrelevant Guarantor, as the case may be, the Liens on the released Collateral, and take all other actions reasonably requested by the Issuers in connection therewith, including (i) the authorization to file UCC3 releases, (ii) the execution of any mortgage releases, intellectual property releases, or termination of account control agreements, and (iii) the return of any pledged collateral under the Collateral Agent’s or Trustee’s control.
(d) The Collateral securing the Notes shall not be released upon repayment or termination of other First Lien Indebtedness.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release shall be released with respect to the Collateral TrusteeNotes and the Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1i) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2ii) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 12.01;
(biii) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in Article 8;
(3iv) in part, as to any property asset constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either TCEH or any of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) Subsidiary Guarantors in a transaction permitted by Section 4.10 and by the Security Documents (to the extent of the interest sold or disposed of) or otherwise permitted by this Indenture and the Security Documents, other than a sale or other disposition to the Issuer or a Restricted Subsidiary or a Permitted Investment described in clause (3) of the definition of “Permitted Investments” (except to the extent the Liens on the asset sold or disposed of are released under the TCEH Senior Secured Facilities), (B) that is cash withdrawn from deposit accounts for any purpose not prohibited by under this Indenture or the Security Documents at the time of such saleDocuments, transfer or disposition or (bC) that is owned or at any time acquired by a Guarantor that has been otherwise released from its Subsidiary Guarantee in accordance with with, and as expressly provided for under, this Indenture, concurrently with the release of such Subsidiary Guarantee First Lien Intercreditor Agreement and the Security Documents or (including D) the Liens on which are released under the TCEH Senior Secured Facilities, except in connection with the designation full and complete discharge of the TCEH Senior Secured Facilities (without a Guarantor as substantially concurrent refinancing thereof); provided, that, in the case of any release described in clauses (A) through (C) immediately above, the Liens on such asset securing the TCEH Senior Secured Facilities, all other First Lien Obligations and all Junior Lien Obligations are simultaneously released, and provided further, that, in the case of any release described in clause (A) immediately above, the Issuer has delivered an Unrestricted Subsidiary Officer’s Certificate to the Collateral Agent certifying that any such sale or upon such Guarantor becoming an Excluded Subsidiary)other disposition does not violate the terms of this Indenture, or the TCEH Senior Secured Facilities;
(4v) as set forth in whole or in partArticle 9, as applicableto property that constitutes less than all or substantially all of the Collateral, with the consent of Holders of 66-2/3at least 75% or more (or, in the case of a release of property having an aggregate fair market value not to exceed $1.0 billion after the Issue Date, a majority) in aggregate principal amount of Notes (including the Required Debt then outstanding, voting as a single class, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in partRequired Debt; provided, in accordance with that the applicable provisions Issuer has delivered an Officer’s Certificate to the Collateral Agent certifying that any such necessary consents have been obtained and that such release of the Collateral Trust and Intercreditor Agreement and does not violate the other Security Documents;terms the TCEH Senior Secured Facilities; and
(6) to the extent that any lease is Collateral, upon termination of such lease;
(7vi) with respect to Collateral that is Capital Stock, assets of a Subsidiary Guarantor upon the dissolution or liquidation of the issuer release of such Capital Stock Subsidiary Guarantor from its Subsidiary Guarantee as set forth in Article 10; provided, that is not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) aboveLiens on such assets securing the TCEH Senior Secured Facilities are simultaneously released, all amounts owing to the Trustee other First Lien Obligations and the Collateral Trustee under this Indentureall Junior Lien Obligations, the Notes, the Subsidiary Guarantees, the Collateral Trust all other First Lien Obligations and Intercreditor Agreement and the other Security Documents have been paidall Junior Lien Obligations are simultaneously released.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers TCEH or the Guarantorsany Subsidiary Guarantor, as the case may be, with the conditions precedent set forth abovein this Section 11.07, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed without representation or warranty of any kind to the IssuersTCEH, or the GuarantorsSubsidiary Guarantor, as the case may be, the released Collateral. Prior to each proposed release, TCEH and each Subsidiary Guarantor shall furnish to the Trustee and the Collateral Agent all documents required by this Indenture and the Security Documents.
(c) The release of any Collateral from the terms of the 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 Security Documents if and to the extent the Collateral is released pursuant to this Indenture, the Security Documents or the First Lien Intercreditor Agreement or upon the termination of this Indenture. Notwithstanding any provision to the contrary herein, as and when requested in writing by TCEH or any Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver UCC financing statement amendments or releases (or amendments or releases to other perfection documents) (which shall be prepared by TCEH or any Guarantor) 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. If requested in writing by TCEH or any Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by TCEH or any Guarantor) and to take such other action as TCEH or any Guarantor may 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 Agreements. The Collateral Agent shall execute and deliver such documents, instruments and statements without representation or warranty of any kind 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 TCEH or any Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver UCC financing statement amendments or releases (or amendments or releases to other perfection documents) (which shall be prepared by TCEH or any Guarantor) solely to the extent necessary to delete Excluded Assets from the description of assets in any previously filed financing statements or other perfection documents. If requested in writing by TCEH or any Guarantor, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by TCEH) and to take such other action as TCEH or any Guarantor may request to evidence or confirm that Excluded Assets 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 without representation or warranty of any kind and shall take all such actions promptly upon receipt of such instructions from the Trustee.
Appears in 1 contract
Samples: Indenture (Energy Future Intermediate Holding CO LLC)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeSecurities and the Note Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding additional interest, condemnation or other similar circumstances or which has become (and only to premium, if any, on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8accordance with Section 8.1(a);
(3) in whole, upon a legal defeasance as set forth under Article VIII;
(4) in part, as to any property asset constituting Collateral (A) that (a) is sold, transferred or otherwise disposed of cash withdrawn from deposit accounts for any purpose permitted by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Guarantor that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee Collateral Documents or the Intercreditor Agreement, (B) if all other Liens on that 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 (C) otherwise in connection with the designation of a Guarantor accordance with, and as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)expressly provided for under, this Indenture;
(45) in whole or in part, as applicable, with the consent of Holders the Initial Holder or holders of 66sixty-six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of Notes the Securities (including or, in the case of a release of all or substantially all Collateral, each holder of the Securities affected thereby), 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;Securities; and
(6) to the extent that any lease is Collateral, upon termination of such lease;
(7) with respect to Collateral that is Capital Stock, assets of a Note Guarantor upon the dissolution or liquidation of the issuer release of such Capital Stock that is not prohibited by this Indenture; orNote Guarantor from its Note Guarantee as set forth under Article XI above.
(8) as described in Section 9.02 hereof; provided that, in b) The Company and each Note Guarantor will furnish to the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to Initial Holder or the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 11.06(a)(1) through (6) or acknowledgement of such release pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Initial Holder or the Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c3) all documents required by this Indenture, the Collateral Documents and the Intercreditor Agreement; and
(4) an Opinion of Counsel to the effect that such release and other accompanying documents constitute all documents required by the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the Issuers Company or the Note Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Company or such Note Guarantor to the Initial Holder or the Trustee an Opinion of Counsel to the effect that such conditions have been complied with, the Initial Holder, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and the Trustee and Collateral Agent shall promptly execute and deliver to the Company or the relevant Guarantor, as the case may be, such instruments of release or reconveyance and other documents as the Company or such Guarantor may request.
Appears in 1 contract
Samples: Indenture (Libbey Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the related Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Notes and all other related Obligations under this Indenture, the Guarantees and the Security Documents that are due and payable at 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 prior to the extent it continues to constitute) Excluded Assetstime such principal, together with accrued and unpaid interest and premium, if any, are paid;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8VIII;
(3) in partwhole, upon a legal defeasance or covenant defeasance as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article VIII;
(4) in whole or in part, as applicableto any asset constituting Collateral, in accordance with, and as expressly provided for under, the Security Documents, the Intercreditor Agreements and this Indenture;
(5) with the consent of Holders of 66-2/3at least 662/3% or more in aggregate principal amount of Notes (including such series of Notes, 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 such series of the Collateral Trust and Intercreditor Agreement and the other Security DocumentsNotes as provided under Section 9.2;
(6) in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the extent that Senior Credit Agreements and any lease is Collateralother Parity Lien Indebtedness other than by reason of payment under or the termination or repayment of the Term Loan Credit Agreement or such other Parity Lien Indebtedness, upon termination the release of the property and assets of such lease;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 of such Guarantor are also substantially concurrently released pursuant to the terms thereof; and
(7) with respect in part, as to Collateral that is Capital Stockany property or assets constituting Collateral, upon to enable the dissolution or liquidation of the issuer disposition of such Capital Stock property or other assets (to a Person that is not the Issuer or a Guarantor) to the extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid3.7.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee The Issuer or the Collateral Trustee or if the Issuers or any applicable Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Sections 11.8(a)(1) through (6) or acknowledgement of such release pursuant to the Security Documents and this IndentureDocuments:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with;
(2) solely in the case of a release described in Section 11.8 (a)(1) through (5), an Opinion of Counsel in accordance with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor AgreementSection 12.2(ii); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and or the Collateral TrusteeAgent).
(c) Upon compliance by the Issuers Issuer or the Guarantorsany Guarantor, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Issuer or such Guarantor to the Trustee or of an Officer’s Certificate (and, with respect to a release described in Section 11.8(a)(1) through (5), an Opinion of Counsel in accordance with Section 12.2(ii)) to the effect that such conditions precedent have been complied with, the Trustee shall direct the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, Agent to promptly cause to be released and reconveyed to the Issuers, Issuer or the Guarantorsrelevant Guarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer or such Guarantor in connection therewith, at the Issuer’s expense.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will shall automatically and without the any need for any further action by any Person (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 dischargedreleased:
(1i) 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 extent it continues to constitute) Excluded Assetscircumstances;
(2ii) in whole upon:
(a1) satisfaction and discharge of this Indenture as set forth in Article 12Section 8.1(a); or
(b2) a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance of this Indenture as set forth in Article 8Section 8.1(b);
(3iii) in part, as to any property constituting Collateral that (ax) is sold, transferred or otherwise disposed of by either of the Issuers Company or any Subsidiary Guarantor (other than to the Company or another Restricted SubsidiarySubsidiary Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (by) is owned or at any time acquired by a Subsidiary Guarantor that has been released from its Subsidiary Guarantee Guaranty in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee Guaranty (including in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4iv) pursuant to an amendment in accordance with Article IX;
(v) in whole or as to all Collateral that is owned by a Subsidiary Guarantor that is released from its Subsidiary Guaranty in part, as applicable, accordance with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);Section 10.2; and
(5vi) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement Documents 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and First Lien Intercreditor Agreement and the other Security Documents have been paidAgreement.
(b) To the extent a proposed In connection with any termination or release of any Liens in all or any portion of the Collateral is not automatic and requires pursuant to this Indenture or any action by of the Collateral Documents, the Trustee shall, or shall cause the Collateral Trustee Agent to, promptly execute, deliver or if the Issuers or any Guarantor desire acknowledge all documents, instruments and releases that the Trustee or the Collateral Trustee acknowledge such release of Collateralhave been requested to release, the Issuers and such Guarantor, as applicable, will furnish reconvey to the Trustee and Company and/or the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers 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, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense directions of the Issuers or such Guarantors, cause to be released and reconveyed to Company and/or the Issuers, or the GuarantorsSubsidiary Guarantor, as the case may be.
(c) The release of any Collateral from the terms of the Collateral Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to this Indenture or upon termination of this Indenture. 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 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 Lien under the Collateral Documents described in the immediately preceding sentence has been released Collateralfrom 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 an 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) The Collateral Trustee’s Liens upon Issuer and the Guarantors are entitled to the releases of property and other assets included in the Collateral will no longer secure from the Liens securing the Notes under any one or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right more of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 dischargedfollowing circumstances:
(1i) in whole or in In part, as applicableto any property or assets constituting Collateral, as to all enable the Issuer to consummate the disposition of such property 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 assets to the extent it continues to constitute) Excluded Assetsnot prohibited under Section 4.11;
(2ii) in whole the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the Notes in accordance with Section 10.06, the release of the property and assets of such Subsidiary Guarantor;
(iii) as permitted by the Intercreditor Agreement, if any; and
(iv) as permitted by the fifth paragraph of Section 9.02.
(b) The security interests in all Collateral securing the Notes will be released upon:
(ai) 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 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 satisfaction and discharge of this Indenture as set forth in Article 12accordance with Section 11.01); or
(bii) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;under this Indenture.
(3c) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in In connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in part, in accordance with the applicable provisions release 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing only an Officer’s Certificate to the Trustee and Notes Collateral Agent will be required and neither the Trustee nor the Notes Collateral Trustee Agent shall 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 NotesNotes Security Documents, the Subsidiary GuaranteesIntercreditor Agreement, if any, and any Junior Lien Intercreditor Agreement, as applicable, to such release have been met and that it is proper for the Notes Collateral Agent or the Trustee, as applicable, to execute and deliver, or authorize the filing of, as applicable, the Collateral Trust and Intercreditor Agreement and documents or instruments prepared by or on behalf of the other Security Documents have been paid.
(b) To Issuer to evidence the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, and upon the Issuers and such GuarantorIssuer’s written request, the Notes Collateral Agent or the Trustee, as applicable, will furnish 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 Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the related Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(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 extent it continues to constitute) Excluded Assets;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property or assets constituting Collateral Collateral, to enable the disposition of such property or assets (to a Person that (ais not the Issuer or a Guarantor) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiaryextent permitted under Section 4.06;
(2) in the case of a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Subsidiary Guarantor that has been is released from its Subsidiary Guarantee in accordance with this Indenturerespect to the Term Loan Credit Agreement and any other Parity Lien Indebtedness other than by reason of payment under or the termination or repayment of the Term Loan Credit Agreement or such other Parity Lien Indebtedness, concurrently with the release of the property and assets of such Subsidiary Guarantee (including Guarantor or a discharge or release by or as a result of payment in connection with the designation enforcement of a remedies under such guarantee or direct obligation, but only if the Liens on the Collateral of such Guarantor are also substantially concurrently released pursuant to the 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 an Unrestricted to the assets owned by such Excluded Subsidiary, upon any Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (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 any Securitization Assets becoming subject to a Receivables Financing to the applicable provisions extent required by the terms of the Collateral Trust and Intercreditor Agreement and the other Security Documentssuch Receivables Financing;
(6) as required pursuant to the extent that terms of any lease is Collateral, upon termination of such lease;Intercreditor Agreement; and
(7) with respect to as contemplated by Article IX. The security interest in all Collateral that is Capital Stock, securing the Notes also will be released upon the dissolution or liquidation (i) payment in full of the issuer of such Capital Stock that is not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided thatprincipal of, in together with accrued and unpaid interest and premium, if any, on, the case of any release in whole pursuant to clauses (1), (2) Notes and (4) above, all amounts owing to the Trustee and the Collateral Trustee other Obligations under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement Guarantees and the other Security Documents have been paidthat 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 satisfaction and discharge of this Indenture pursuant to Article VIII or (ii) a legal defeasance or covenant defeasance as set forth in Article VIII.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee The Issuer or the Collateral Trustee or if the Issuers or any applicable Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Sections 13.08(a)(1) through (6) or acknowledgement of such release pursuant to the Security Documents and this IndentureDocuments:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement)with; and
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and or the Collateral TrusteeAgent).
(c) Upon compliance by the Issuers Issuer or the Guarantorsany Guarantor, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Issuer or such Guarantor to the Trustee or of an Officer’s Certificate to the effect that such conditions precedent have been complied with, the Trustee shall direct the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, Agent to promptly cause to be released and reconveyed to the Issuers, Issuer or the Guarantorsrelevant Guarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer or such Guarantor in connection therewith, at the Issuer’s expense.
Appears in 1 contract
Samples: Indenture (Advantage Solutions Inc.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon Issuer and the Guarantors are entitled to the releases of property and other assets included in the Collateral will no longer secure from the Liens securing the Notes under any one or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right more of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 dischargedfollowing circumstances:
(1i) in whole or in In part, as applicableto any property or assets constituting Collateral, as to all enable the Issuer to consummate the disposition of such property 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 assets to the extent it continues to constitute) Excluded Assetsnot prohibited under Section 4.11;
(2ii) in whole the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the Notes in accordance with Section 10.06, the release of the property and assets of such Subsidiary Guarantor;
(iii) as permitted by the Intercreditor Agreement, if any; and
(iv) as permitted by the fifth paragraph of Section 9.02.
(b) The security interests in all Collateral securing the Notes will be released upon:
(ai) 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 Guarantees and the 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 satisfaction and discharge of this Indenture as set forth in Article 12accordance with Section 11.01); or
(bii) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;under this Indenture.
(3c) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in In connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in part, in accordance with the applicable provisions release 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing only an Officer’s Certificate to the Trustee and Second Lien Collateral Agent will be required and neither the Trustee nor the Second Lien Collateral Trustee Agent shall 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 NotesSecurity Documents and the Intercreditor Agreement, as applicable, to such release have been met and that it is proper for the Second Lien Collateral Agent or the Trustee, as applicable, to execute and deliver, or authorize the filing of, as applicable, the Subsidiary Guarantees, documents or instruments prepared by or on behalf of the Collateral Trust and Intercreditor Agreement and Issuer to evidence the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, and upon the Issuers and such GuarantorIssuer’s written request, the Second Lien Collateral Agent or the Trustee, as applicable, will furnish 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 Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Subject to the Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement, the First Lien Notes Collateral Trustee’s Liens upon 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 no longer secure be released from the Notes Liens and security interests created by the Collateral Documents at any time or other 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 outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements)Indenture, the Notes, the Guarantees, and the right Collateral Documents under any one or more of the Holders to the benefits following circumstances, and proceeds of the Collateral Trustee’s 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 will automatically Agent and without the need for any further action by any Person (other than notice except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of such release to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedfollowing:
(1i) in whole or in partwhole, 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) upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 12.01;
(bii) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in Article 8Section 8.02 or Section 8.03, as applicable;
(3iii) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers Company or any Guarantor of its Subsidiaries (other than to the Company or another Restricted Subsidiarya 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 Security Documents at Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the time terms of such salethe ABL Intercreditor Agreement; (D) that is Notes Collateral, transfer or disposition pursuant to the terms of the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement or (bE) is owned or that at any time acquired becomes Excluded Property;
(iv) that is owned by a Guarantor that has been is 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);
(4v) in whole or in part, as applicable, with the consent of Holders of 66-2/375% or more 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);
(5) in part, then outstanding 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 CollateralSection 9.02, upon termination of such lease;
(7) with respect to Collateral that is Capital Stockprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1)clauses, (2i) and (4ii) above, all amounts owing to the Trustee and the First Lien Notes Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, Guarantees and the Collateral Trust and Intercreditor Agreement and the other Security 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.
(bc) To the extent a proposed release of Collateral is not automatic For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral(vi) thereof), the Issuers Company and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the First Lien Notes Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1i) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral 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 such the release of Collateral is permitted by this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andDocuments;
(3ii) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and First Lien Notes Collateral Trustee Agent and shall provide that the requested release is without recourse or warranty to the Trustee and First Lien Notes Collateral TrusteeAgent).;
(ciii) 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 Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth aboveabove 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 Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, 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) The Subject to subsections (b) and (c) of this Section 13.6, Collateral Trustee’s Liens upon may be released from the Lien and security interest created by the Collateral Documents at any time or from time to time in accordance with the provisions of the Collateral Documents, the Intercreditor Agreement or as provided hereby. Upon the request of the Company pursuant to an Officers’ Certificate described in clause (b) below, the Company and the Subsidiary Guarantors will no longer secure be entitled to a release of assets included in the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements)Collateral from the Liens securing the Securities, and the right Collateral Trustee and the Trustee shall release the same from such Liens at the Company’s sole cost and expense, under one or more of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 dischargedfollowing circumstances:
(1) in whole or whole, upon payment in partfull of the principal of, as applicablepremium and accrued and unpaid interest, as to if any, and any Unpaid Additional Interest Payments on the Securities and the satisfaction of all or any portion of property subject to such Liens which has been taken by eminent domainother obligations under the Indenture, condemnation or the Collateral Documents, the Intercreditor Agreement and other similar circumstances or which has become (and only to the extent it continues to constitute) Excluded Assetsrelevant credit documents;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8Section 8.1;
(3) in part, as to any property asset constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) any Subsidiary Guarantor in a transaction not prohibited permitted by the Collateral Documents, to the extent of the interest sold or disposed of; (B) that is cash withdrawn from deposit accounts for any purpose permitted by this Indenture Indenture, the Collateral Documents or the Security Documents at the time of such sale, transfer or disposition or Intercreditor Agreement; (bC) that is owned or at any time acquired by a Subsidiary Guarantor that has been released from its Subsidiary 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 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);Collateral Documents; or
(4) in whole pursuant to an amendment or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in part, waiver in accordance with the applicable provisions Article IX 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 hereof; provided , provided, that, in the case of any release in whole pursuant to clauses clause (1), (2) and (4a)(i) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the NotesSecurities, the Subsidiary Guarantees, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic The Company and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Subsidiary Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, no less than 30 days prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted with; and
(2) all documents required by TIA §314(d), this Indenture, the other Note Collateral Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) . Upon compliance by the Issuers Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture, upon delivery by the Company or such Subsidiary Guarantor to the Trustee and the Collateral Trustee of an Opinion of Counsel to the effect that such conditions have been complied with, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantorsrelevant Subsidiary Guarantor, as the case may be, the released Collateral, and the Collateral Trustee shall promptly execute and deliver to the Company or the relevant Subsidiary Guarantor, as the case may be, such instruments of release or reconveyance and other documents as the Company or such Subsidiary Guarantor may request.
(c) 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 Collateral pursuant to the provisions 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 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 modifying any franchise, license or permit subject to the Lien of this Indenture 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. 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 Section 13.6(f) in which no release or consent of the 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without securing the need for any further action by any Person (other than notice of such release to the Collateral Trustee, but the failure to deliver such notice Notes shall not affect such release) terminate and be dischargedreleased:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableand accrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orIndenture;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred Section 8.02 or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)8.03 hereof;
(4) to the extent of the Collateral disposed of, upon the sale or other disposition of all or any portion of the Collateral in whole accordance with, and as expressly provided for under, this Indenture (subject to any continuing Lien on the proceeds of such sale or in part, as applicable, other disposition); and
(5) with the consent of the Holders of 66-2/3% or more a majority in aggregate principal amount of Notes (the then outstanding Notes, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the The Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will shall furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:Sections 10.03(a)(1), (2), (3) or (5):
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) Pledge Agreement to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(32) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c3) all documents required by the Pledge Agreement; and
(4) an Opinion of Counsel to the effect that such release and other accompanying documents constitute all documents, and contain the terms and conditions, required by the Pledge Agreement and this Indenture. Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth aboveabove (if any), and delivery by the Issuers to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, Company the released Collateral, and the Trustee and Collateral Agent shall promptly execute and deliver to the Company such instruments of release or reconveyance and other documents as the Company 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 Collateral Agent or any other Person and the Trustee and Collateral Agent shall promptly execute and deliver to the Company such instruments of release and other documents as the Issuer or such Guarantor may request.
(d) The release of any Collateral from the Lien of the Pledge Agreement shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent the Collateral is released pursuant to the terms hereof and of the Pledge Agreement. To the extent applicable, the Company shall cause Section 314(d) of the TIA relating to the release of property from the Lien of the Pledge Agreement to be complied with. Any certificate or opinion required by Section 314(d) of the TIA may 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 (as such terms are set forth in Section 314(d) of the TIA).
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral securing the Notes will automatically and without the need for any further action by any Person (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 dischargedreleased:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12; or
(bA) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;VIII hereof; or
(B) the satisfaction and discharge of this Indenture as set forth in Section 11.01; or
(C) upon the occurrence of a Suspension Date (provided that the applicable Investment Grade Ratings give effect to the proposed release of the Collateral).
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers any Issuer or any Guarantor (other than to the Company any Issuer or another Restricted SubsidiaryGuarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, in accordance with the consent of Holders of 66-2/3% or more provisions in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes)Article IX;
(5) in part, in accordance with the applicable provisions of the Collateral Trust and Intercreditor Agreement Security Documents and the other Security Documents;ABL Intercreditor Agreement; or
(6) in whole or in part, as applicable, as to all or any part of the extent that any lease is Collateral, upon termination of such lease;
(7) with respect to Collateral that is Capital Stockhas been taken by eminent domain, upon the dissolution condemnation or liquidation of the issuer of such Capital Stock that is not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; other similar circumstances, provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust Security Documents and the ABL Intercreditor Agreement have been paid in full. Notwithstanding clause (2)(C) above, upon the occurrence of a Reinstatement Date, the Issuers and the other Security Documents have been paidGuarantors 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 Notes 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 120 days after such Reinstatement Date.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of CollateralAgent, the Issuers and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) , an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect Counsel that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) relating to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee)with.
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee Agent shall promptly, upon the request promptly cause to be released and reconveyed (at the expense of the Issuers or such the Guarantors, cause to be released and reconveyed ) to the Issuers, Issuers or the Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Samples: Indenture (NGL Energy Partners LP)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral securing the Notes will automatically and without the need for any further action by any Person (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 dischargedreleased:
(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 extent it continues to constitute) Excluded Assetscircumstances;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12XII hereof; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8VIII hereof;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers Issuer or any Guarantor (other than to the Company Issuer or another Restricted Subsidiarya Guarantor) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) that is cash or Net Proceeds of any Asset Sale for any one or more purposes permitted by Section 3.5;
(4) in part, as to any property that is owned or at any time acquired by a Guarantor that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee Guarantee;
(including 5) in connection with the designation part, as to any Collateral of a Guarantor that is designated as an Unrestricted Subsidiary in a transaction or upon other circumstance that complies with the provisions of this Indenture and other relevant provisions of any other Security Documents, at the time such Guarantor becoming is designated as an Excluded Unrestricted Subsidiary);
(46) in whole or in part, as applicable, in accordance with the applicable provisions of the Security Documents or with the consent of Holders of 66-2/3% or more a majority in aggregate principal amount of the outstanding Notes (including 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;; and
(7) with respect to Collateral that is Capital Stock, upon the dissolution all or liquidation substantially all of the issuer Collateral, with the consent of such Capital Stock that is not prohibited by this Indenture; or
Holders of 75% in aggregate principal amount the then outstanding Notes (8) as described including, without limitation, consents obtained in Section 9.02 hereof; provided thatconnection with a tender offer or exchange offer for, in the case of any release in whole pursuant to clauses (1or purchase of, Notes), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Issuer and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c4) all documents required by Section 314(d) of the TIA, this Indenture, the Security Documents and the Junior Lien Intercreditor Agreement; and
(5) 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 Security Documents. Upon compliance by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuer or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersIssuer, or the Guarantors, as the case may be, the released Collateral.
(c) For purposes of the TIA, the release of any Collateral from the terms of the Security Documents 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 Security Documents if and to the extent the Collateral is released pursuant to this Indenture and the Security Documents or upon the termination of this Indenture.
Appears in 1 contract
Samples: Indenture (Bankrate, Inc.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically be released with respect to any series of Notes and without the need for any further action by any Person (other than notice of such release to the Collateral Trusteerelated Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole 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 Guarantees and the Security Documents that are due and payable at 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 prior to the extent it continues to constitute) Excluded Assetstime such principal, together with accrued and unpaid interest and premium, if any, are paid;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8VIII;
(3) in partwhole, upon a legal defeasance or covenant defeasance with respect to such series as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article VIII;
(4) in whole or in part, as applicableto any asset constituting Collateral, in accordance with, and as expressly provided for under, the Security Documents, the Intercreditor Agreements and this Indenture;
(5) with the consent of Holders of 66-2/3at least 662/3% or more in aggregate principal amount of Notes (including such series of Notes, 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 such series of the Collateral Trust and Intercreditor Agreement and the other Security DocumentsNotes as provided under Section 9.2;
(6) in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the extent that Senior Credit Agreements and any lease is Collateralother Parity Lien Indebtedness other than by reason of payment under or the termination or repayment of the Term Loan Credit Agreement or such other Parity Lien Indebtedness, upon termination the release of the property and assets of such lease;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 of such Guarantor are also substantially concurrently released pursuant to the terms hereof; and
(7) with respect in part, as to Collateral that is Capital Stockany property or assets constituting Collateral, upon to enable the dissolution or liquidation of the issuer disposition of such Capital Stock property or other assets (to a Person that is not the Issuer or a Guarantor) to the extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid3.7.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will securing the obligations of the Company and the Guarantors under the Notes, the Guarantees, the Indenture and the Security Documents shall automatically and without the any need for any further action by any Person be released:
(other than notice i) upon release of such release a Guarantee (with respect to the Liens on the Collateral Trustee, but the failure to deliver owned by and securing any Guarantor’s obligations under such notice shall not affect such releaseGuarantee);
(ii) terminate and be dischargedin whole upon:
(1) satisfaction and discharge of the Indenture in accordance with Article Four of the Base Indenture; or
(2) a defeasance or covenant defeasance of the Indenture in accordance with Article Fourteen of the Base Indenture;
(iii) in whole upon payment in full of the principal of, and premium, if any, and interest on, all of the Outstanding Notes;
(iv) in whole or in part, with the consent of the Holders of the requisite aggregate principal amount of the Outstanding Notes in accordance with Section 902 of the Indenture; or
(v) as applicable, as permitted by Section 4.06(c) (with respect to the Liens on the related Replaceable Collateral).
(b) In connection with any termination or release of any Liens in 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 the Collateral pursuant to the extent it continues to constitute) Excluded Assets;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust Agent and, if necessary, the Trustee shall, promptly execute, deliver or acknowledge all documents, instruments and Intercreditor Agreement and the other Security Documents releases that have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action requested by the Trustee or the Collateral Trustee or if the Issuers Company, any Guarantor Security Grantor or any Non-Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers or the GuarantorsGrantor, as the case may be, with to release, reconvey or otherwise return to the conditions precedent set forth aboveCompany, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers such Guarantor Security Grantor or such Guarantors, cause to be released and reconveyed to the Issuers, or the GuarantorsNon-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 directions 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 when requested by the Company, any Guarantor Security Grantor or any Non-Guarantor Security Grantor, the Trustee shall instruct the Collateral Agent to (i) authorize the filing of Uniform Commercial Code termination statements, amendments or releases, (ii) execute letter agreements terminating all securities or deposit account control agreements or other control agreements entered into by the 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.
(c) The release of any Collateral from the terms of the Security Documents shall not be deemed to impair the security under the Indenture in contravention of the provisions hereof if and to the extent such Collateral is released pursuant to the Indenture or the Security Documents or upon termination of the Indenture, and each of the Holders, by accepting any Notes 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral securing the Notes will automatically and without the need for any further action by any Person (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 dischargedreleased:
(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 extent it continues to constitute) Excluded Assetscircumstances;
(2) in whole upon:
(a) satisfaction and discharge of this Indenture as set forth in Article 12XII hereof; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8VIII hereof;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Subsidiary Guarantor (other than to the Company Issuers or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired 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 or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-66 2/3% or more in aggregate principal amount of Notes (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 the applicable provisions of the Security Documents, 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 hereofABL Intercreditor Agreement; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Note Guarantees, the Security Documents, the Collateral Trust and Intercreditor Agreement and the other Security Documents ABL Intercreditor Agreement have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any the action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of CollateralAgent, the Issuers and such Guarantor, as applicable, each Subsidiary Guarantor will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 13.4 and 13.05 hereof 13.5 to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee Agent and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral TrusteeAgent); and
(4) upon qualification of the Indenture under the TIA subject to and only to the extent applicable pursuant to Section 11.2(d), any other documents or instruments required to be delivered pursuant to TIA §314(d).
(c) Upon compliance by the Issuers or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuers or such Subsidiary Guarantor to the Trustee and Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the Issuers, or the Subsidiary Guarantors, as the case may be, the released Collateral.
(d) For purposes of the TIA, the release of any Collateral from the terms of the Security Documents 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 Security Documents if and to the extent the Collateral is released pursuant to this Indenture and the Security Documents or upon the termination of this Indenture.
Appears in 1 contract
Samples: Indenture (Northern Tier Energy LLC)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes and the Guarantees, but the failure to deliver such notice shall not affect such release) terminate and be dischargedas applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; orVIII;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in under Article 8;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)VIII;
(4) in whole or in part, as applicableto any asset constituting Collateral, in accordance with, and as expressly provided for under, the Security Documents and this Indenture;
(5) with the consent of Holders of 66-2/3at least 662⁄3% or more in aggregate principal amount of Notes (including the Notes, 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 DocumentsNotes as provided under Section 9.2;
(6) with respect to assets of a Subsidiary Guarantor, upon release of such Subsidiary Guarantor from its Guarantee with respect to the extent that Term Loan Credit Agreement and any lease is Collateral, upon other Parity Lien Debt other than by reason of payment under or the termination or repayment of the Term Loan Credit Agreement or such leaseother Parity Lien Debt;
(7) with respect upon such Collateral becoming Excluded Collateral; and
(8) in part, to enable the disposition of property or other assets that constitute Collateral that is Capital Stock, upon to the dissolution or liquidation of the issuer of such Capital Stock that is extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid4.10.
(b) To the extent a proposed release of Collateral is not automatic The Issuer and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 11.7(a)(1) through (8) or acknowledgement of such release pursuant to the Security Documents and this IndentureDocuments:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with;
(3) solely in the case of a release described in Section 11.7(a)(1) through (5), an Opinion of Counsel in accordance with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor AgreementSection 12.2(b); and
(34) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and or the Collateral TrusteeAgent).
(c) Upon compliance by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuer or such Guarantor to the Trustee or an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee shall direct the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, Agent to promptly cause to be released and reconveyed to the Issuers, Issuer or the Guarantorsrelevant Guarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer in connection therewith, at the Issuer’s expense.
Appears in 1 contract
Samples: Indenture (Vertiv Holdings Co)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued (or, as to all or any portion the case of property subject to such Liens which has been taken by eminent domainAdditional Interest, condemnation or other similar circumstances or which has become (payable) and only to unpaid interest and premium, if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 10.01;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 88 hereof;
(34) in part, as to any property or assets constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either or deemed disposed of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited permitted by this Indenture or the Security Documents at the time of such saleSection 4.05, transfer or disposition or (bB) that is owned or at any time acquired by a Guarantor that to the extent such Guarantor has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release of such Subsidiary Guarantee thereof or (including C) otherwise in connection with the designation of a Guarantor accordance with, and as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);expressly provided for under, this Indenture; or
(45) in whole or in part, as applicable, with the consent of Holders of 66-2/3at least 75% or more in aggregate principal amount of the Notes then outstanding (including including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, or purchase ofNotes) under the circumstances described under Section 9.02; provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and or (43) above, all amounts then due and owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement Guarantees and the other Security Documents have been paidpaid or duly provided for.
(b) To the extent a proposed release Upon any sale or disposition of Collateral is not automatic in compliance with this Indenture and requires any action by the Security Documents, the Liens in favor of the Collateral Agent on such Collateral shall automatically terminate and be released, and the Trustee or the Collateral Trustee Agent will execute and deliver such documents and instruments as the Issuer and the Guarantors may request to evidence such termination and release (without any representation or if warranty) without the Issuers consent of the holders of the Notes.
(c) To the extent the Issuer or any Guarantor desire the Guarantors request that the Trustee execute and deliver any documents or instruments to evidence such termination or release, the Issuer or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such GuarantorGuarantors, as applicablethe case may be, will at the request of the Trustee, shall furnish to the Trustee and the Collateral Trustee(or its agent), prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) , an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and and/or an Opinion of Counsel, in compliance Counsel with Sections 13.04 and 13.05 hereof respect to the effect that all conditions precedent provided for in this Indenture, the other Note Documents such release. The Issuer and the Security Documents (including, without limitation, the Collateral Guarantors shall not be required to comply with all or any portion of Trust and Intercreditor AgreementIndenture Act 314(b) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee314(d).
(cd) Upon compliance by the Issuers Issuer or the Guarantors, as the case may be, with the conditions precedent set forth abovein Sections 11.06(a) and (c), the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed reconveyed, as applicable, to the Issuers, Issuer or the Guarantors, as the case may be, the released CollateralCollateral in accordance with the directions of the Issuer.
(e) Notwithstanding any provision to the contrary herein, as and when instructed in writing by the Issuer, the Trustee shall (at the Issuer’s expense) execute or deliver, or cause to be executed or delivered, as applicable, such amendments or releases to perfection documents (which shall be prepared by the Issuer) 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. If instructed in writing by the Issuer, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Issuer) and to take such other action (at the Issuer’s expense) as the Issuer may instruct to evidence or confirm that released Collateral pursuant to this Section 11.06 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.
(f) Notwithstanding any provision to the contrary herein, as and when instructed by the Issuer, the Trustee shall (at the Issuer’s expense) execute or deliver, or cause to be executed or delivered, such amendments or releases to perfection documents (which shall be prepared by the Issuer) solely to the extent necessary to delete Excluded Assets from the description of assets in any previously filed financing statements or other perfection documents. If instructed in writing by the Issuer, the Trustee shall instruct the Collateral Agent to execute and deliver such documents, instruments or statements (which shall be prepared by the Issuer) and to take such other action (at the Issuer’s expense) as the Issuer may instruct to evidence or confirm that Excluded Assets described in the immediately preceding sentence has been released from the Liens of each of the Security 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
Samples: Senior Secured Notes Indenture (Spanish Broadcasting System Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right Subject to Section 7.13 of the Holders to the benefits First Lien Security Agreement and proceeds Section 7.13 of the Collateral Trustee’s Second Lien Security Agreement, the Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedSecurities:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest (including Additional Interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any) and premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(bSection 8.1(a) a Legal Defeasance or Covenant Defeasance as set forth in Article 8hereof;
(3) in whole, upon a legal defeasance as set forth in Section 8.1(b) hereof;
(4) 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 (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of its Restricted Subsidiary) Subsidiaries in a transaction not prohibited permitted by this Indenture Section 3.5 or the Security Documents at Collateral Documents, to the time extent of such salethe interest sold or disposed of, transfer (B) that is cash or Net Available Cash withdrawn from the Collateral Account for any one or more purposes permitted by Section 3.5, (C) that is of the 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 or as therein provided, (bD) that is owned or at any time acquired by a Guarantor Subsidiary of the Company that 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 Guarantee (including in connection Subsidiary’s Capital Stock secures the Securities, to file separate financial statements with the designation of a Guarantor SEC (or any other governmental agency), or (F) otherwise in accordance with, and as an Unrestricted Subsidiary expressly provided for under, this Indenture, including, without limitation, Article X, or upon such Guarantor becoming an Excluded Subsidiary);the Collateral Documents; or
(45) in whole or in part, as applicable, with the consent of Holders of 66-2/3662/3% or more in aggregate of the outstanding principal amount of Notes the Securities, unless such release involves all or substantially all of the Collateral, in which case such release will require the consent of each Holder affected thereby (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
(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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers Company and such Guarantor, as applicable, each Subsidiary Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c4) all documents required by TIA §314(d), this Indenture and the Collateral Documents; and
(5) 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. Upon compliance by the Issuers Company or the Subsidiary Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Subsidiary Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Subsidiary Guarantors, as the case may be, the released Collateral, unless otherwise specified in the Collateral Documents.
(c) For purposes of the TIA, the release of any Collateral from the terms of the Collateral Documents 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.
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Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon Issuer and the Guarantors are entitled to the releases of property and other assets included in the Collateral will no longer secure from the Liens securing the Notes under any one or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right more of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (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 dischargedfollowing circumstances:
(1i) in whole or in In part, as applicableto any property or assets constituting Collateral, as to all enable the Issuer to consummate the disposition of such property 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 assets to the extent it continues to constitute) Excluded Assetsnot prohibited under Section 4.11;
(2ii) in whole the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the Notes in accordance with Section 10.06, the release of the property and assets of such Subsidiary Guarantor;
(iii) as permitted by the Intercreditor Agreement, if any; and
(iv) as permitted by the fifth paragraph of Section 9.02.
(b) The security interests in all Collateral securing the Notes will be released upon:
(ai) 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 Guarantees and the 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 satisfaction and discharge of this Indenture as set forth in Article 12accordance with Section 11.01); or
(bii) a Legal Defeasance or Covenant Defeasance as set forth in Article 8;under this Indenture.
(3c) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary);
(4) in whole or in part, as applicable, with the consent of Holders of 66-2/3% or more in aggregate principal amount of Notes (including without limitation, consents obtained in In connection with a tender offer or exchange offer for, or purchase of, Notes);
(5) in part, in accordance with the applicable provisions release 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing only an Officer’s Certificate to the Trustee and First Lien Collateral Agent will be required and neither the Trustee nor the First Lien Collateral Trustee Agent shall 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 NotesSecurity Documents and the Intercreditor Agreement, as applicable, to such release have been met and that it is proper for the First Lien Collateral Agent or the Trustee, as applicable, to execute and deliver, or authorize the filing of, as applicable, the Subsidiary Guarantees, documents or instruments prepared by or on behalf of the Collateral Trust and Intercreditor Agreement and Issuer to evidence the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, and upon the Issuers and such GuarantorIssuer’s written request, the First Lien Collateral Agent or the Trustee, as applicable, will furnish 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 Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, the Trustee or the Collateral Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed to the Issuers, or the Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon Subject to applicable law, the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral securing the Notes issued under this Indenture will automatically and without the need for any further action by any Person (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 dischargedreleased:
(1) in whole connection with any sale or in part, as applicable, as other disposition of Collateral to all or a Person that is not a Restricted Subsidiary (but excluding any portion of property transaction subject to Article 5), if such Liens which has been taken by eminent domain, condemnation sale or other similar circumstances disposition does not violate Section 4.10 or which has become (and only to the extent it continues to constitute) Excluded Assetsis otherwise permitted in accordance with this Indenture;
(2) in whole upon:
(a) satisfaction and discharge the case of a Guarantor that is released from its Note Guarantee pursuant to the terms of this Indenture as set forth in Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8Indenture, the release of the Capital Stock, of such Guarantor;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)Article 9;
(4) upon payment in whole full of principal, interest and all other obligations on the Notes or in partdefeasance or discharge of the Notes, as applicable, with the consent of Holders of 66-2/3% or more provided in aggregate principal amount of Notes (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes)Article 11;
(5) in part, if the Company designates any Restricted Subsidiary to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture, the Collateral Trust and Intercreditor Agreement and release of the other Security Documents;Capital Stock of such Unrestricted Subsidiary; or
(6) to the extent that any lease is Collateral, upon termination of such lease;
(7) as otherwise permitted in accordance 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(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 Restricted Subsidiary shall result in the release of the Lien on such Collateral.
(c) To the extent a proposed required by this Indenture for the release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire principal properties that the Trustee or the Collateral Trustee acknowledge such release of constitute Collateral, the Issuers Company and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) , an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted as required by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(cd) Upon compliance by the Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth aboveabove and the requirements of the Intercreditor Agreement, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Samples: Indenture (Atento S.A.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes, but the failure to deliver such notice shall not affect such release) terminate Intermediate Holdings Guarantee and be dischargedthe Note Guarantees, as applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 813;
(3) in partwhole, upon a legal defeasance or covenant defeasance as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article 8;
(4) in whole or in part, as applicable, accordance with the provisions of the Intercreditor Agreement;
(5) with the consent of Holders of 66sixty-six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of Notes (including the Notes, 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) with respect to the extent that any lease is Collateral, assets of Intermediate Holdings or a Note Guarantor upon termination release of Intermediate Holdings from its Intermediate Holdings Guarantee or such lease;Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) with to enable the disposition of property or other assets that constitute Collateral, other than to an obligor in respect to Collateral that is Capital Stock, upon the dissolution or liquidation of the issuer of such Capital Stock that is Notes, to the extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; 4.10. provided that, in the case of any release in whole pursuant to clauses (1), (2), (3) and (4) above, all amounts owing to the Trustee and the Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary GuaranteesIntermediate Holdings Guarantee, the Note Guarantees and the Collateral Documents shall have been paid. For the avoidance of doubt, the Collateral Trust and Intercreditor Agreement and securing the other Security Documents have been paidNotes will not be released due to repayment or termination of First Lien Priority Indebtedness.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the The Issuers and such Guarantor, as applicable, each Note Guarantor will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release the Collateral Agent providing any requested written evidence of such Collateral or acknowledgement of such release pursuant to Section 14.07(a)(1) through (7) or pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) 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 or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse to or representation or warranty to by the Trustee and Collateral Trustee).
(c) Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel.
(d) Upon compliance by the Issuers Issuer, the Co-Issuer, Intermediate Holdings or the Note Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture, upon delivery by the Issuer, the Co-Issuer or Intermediate Holdings or such Note Guarantor to the Trustee and the Collateral Agent an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersIssuer, the Co-Issuer, Intermediate Holdings or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer in connection therewith.
(e) 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 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 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 this Indenture relating to the Collateral shall be deemed to relate to such after-acquired property or asset to the same extent and with the same force and effect. If, after the Collateral is released 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 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 Pari Passu Intercreditor Agreement.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Subject to the Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement, the First Lien Notes Collateral Trustee’s Liens upon 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 no longer secure be released from the Notes Liens and security interests created by the Collateral Documents at any time or other 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 outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements)Indenture, the Notes, the Guarantees, and the right Collateral Documents under any one or more of the Holders to the benefits following circumstances, and proceeds of the Collateral Trustee’s 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 will automatically Agent and without the need for any further action by any Person (other than notice except as provided herein or in the applicable Collateral Document), be released, terminated and discharged upon any of such release to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedfollowing:
(1i) in whole or in partwhole, 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) upon satisfaction and discharge of this Indenture as set forth in Article 12; orSection 12.01;
(bii) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in Article 8Section 8.02 or Section 8.03, as applicable;
(3iii) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers Company or any Guarantor of its Subsidiaries (other than to the Company or another Restricted Subsidiarya 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 Security Documents at Collateral Account for any one or more purposes permitted by Section 3.02; (C) that is ABL Collateral, pursuant to the time terms of such salethe ABL Intercreditor Agreement; (D) that is Notes Collateral, transfer or disposition pursuant to the terms of the ABL Intercreditor Agreement or (bE) is owned or that at any time acquired becomes Excluded Property;
(iv) that is owned by a Guarantor that has been is 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);
(4v) in whole or in part, as applicable, with the consent of Holders of 66-2/375% or more 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);
(5) in part, then outstanding 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 CollateralSection 9.02, upon termination of such lease;
(7) with respect to Collateral that is Capital Stockprovided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1)clauses, (2i) and (4ii) above, all amounts owing to the Trustee and the First Lien Notes Collateral Trustee Agent under this Indenture, the Notes, the Subsidiary Guarantees, Guarantees and the Collateral Trust and Intercreditor Agreement and the other Security 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.
(bc) To the extent a proposed release of Collateral is not automatic For all circumstances in Section 11.06(b) (other than with respect to clauses (iii) and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral(vi) thereof), the Issuers Company and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the First Lien Notes Collateral TrusteeAgent, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1i) an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and an Opinion of Counselrelease, in compliance with Sections 13.04 and 13.05 hereof including a statement to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral 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 such the release of Collateral is permitted by this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andDocuments;
(3ii) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and First Lien Notes Collateral Trustee Agent and shall provide that the requested release is without recourse or warranty to the Trustee and First Lien Notes Collateral TrusteeAgent).;
(ciii) 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 Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth aboveabove 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 Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, 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) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedNotes:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or11;
(b3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 88 ;
(34) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of its Restricted Subsidiary) Subsidiaries in a transaction not prohibited permitted by Section 4.10 or by the Collateral Documents, to the extent of the interest sold or disposed of, (B) that is cash or Net Proceeds withdrawn from a Collateral Account for any one or more purposes permitted by Section 4.10 or by Section 2.15 (C) that is of the nature described in clause (1), clause (5), clauses (7) through (15) of the second paragraph in the definition of “Asset Sale,” and is subject to a disposition as therein provided, (D) that constitutes Excess Collateral Proceeds that remain unexpended after the conclusion of a Collateral Sale Offer conducted in accordance with this Indenture or the Security Documents at the time of such saleIndenture, transfer or disposition or (bE) that is owned or at any time acquired by a Guarantor Subsidiary of the Company that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release thereof, (F) that is Capital Stock, upon the dissolution of the issuer of such Subsidiary Guarantee (including Capital Stock in connection accordance with the designation terms of a Guarantor this Indenture; or (G) otherwise in accordance with, and as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)expressly provided for under, this Indenture;
(45) in whole or in part, as applicable, with the consent of the Holders of 66-2/3at least 75% or more in of the aggregate principal amount of the Notes affected thereby (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(56) on any of the Second Priority Collateral, upon any release thereof by the agent under the Credit Agreement (or the requisite lenders thereunder) or as otherwise authorized or directed by such agent or lenders (other than in part, in accordance connection with the applicable provisions expiration or termination of the Credit Agreement); provided, however, that if there is reinstated a Lien securing Credit Agreement obligation on any or all of the Second Priority Collateral Trust and Intercreditor Agreement and upon which the other Security Documents;
Lien securing the Notes has been released pursuant to this clause (6) to then the extent that any lease is CollateralLien securing the Notes on such Second Priority Collateral will also be deemed reinstated on a second priority basis; provided, 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2), (3), (5) and (46) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Trust Documents and the Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralrequired, the Issuers and such Guarantor, as applicable, will Company shall furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) an Officer’s Certificate requesting and Opinion of Counsel and such release or acknowledgement;other documentation as required by this Indenture; and
(2) an Officer’s Certificate and an Opinion all documents required by §314(d) of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitationTrust Indenture Act, the Collateral Trust Documents, the Intercreditor Agreement and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); and
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) . Upon compliance by the Issuers Company or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Company or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersCompany, or the its Guarantors, as the case may be, the released Collateral.
(c) 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 Trust Indenture Act 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 Trust Indenture Act is inapplicable to the released Collateral.
(d) The Company and the Guarantors may, among other things, without any release or consent by the Trustee, conduct ordinary course activities with respect to Collateral, including, without limitation, (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, canceling, 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; (iii) surrendering or modifying any franchise, license or permit subject to the Lien of this Indenture or any of the Collateral Documents which it may own or under which it may be operating; altering, repairing, replacing, changing the location or position of and adding to its structures, machinery, systems, equipment, fixtures and appurtenances; (iv) granting a license of any intellectual property; (v) selling, transferring or otherwise disposing of inventory in the ordinary course of business; (vi) 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 as permitted by Section 4.10 ; (vii) 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 (viii) abandoning any intellectual property which is no longer used or useful in the Company’s business. The Company shall deliver to the Collateral Agent, within 30 calendar days following the end of each six-month period beginning on May 15 and November 15 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 Section 12.07(d) in which no release or consent of the Collateral Agent was obtained in the ordinary course of the Company’s and the Guarantors’ business were not prohibited by this Indenture.
Appears in 1 contract
Samples: Indenture (Unifi Inc)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect 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 extent it continues to constitute) Excluded Assets;
(2) in whole uponNotes:
(a) satisfaction and upon the defeasance or discharge of this Indenture the Notes as set forth provided in Article 12; or8 or Article 10, in each case in accordance with the terms of this Indenture;
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 8upon an enforcement action pursuant to the terms of the Group Intercreditor Deed;
(3c) in part, as to any property constituting Collateral (A) that (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another any of the Restricted Subsidiary) Subsidiaries in a transaction permitted by Section 4.10 and by the Collateral Documents, to the extent of the interest sold or disposed of, or otherwise not prohibited by this Indenture or and the Security Documents at the time of such saleCollateral Documents; (B) otherwise in accordance with, transfer or disposition and as expressly provided for under this Indenture; or (bC) that no longer secures any obligations under the Existing Credit Facility or any Pari Passu Lien Obligations;
(d) if the Collateral is owned or at any time acquired by a Note Guarantor that has been is released from its Subsidiary Note 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);; and
(4e) in whole or in part, as applicable, with the consent of Holders of 66at least seventy-2/3% or more five percent (75%) in aggregate principal amount of the Notes (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the 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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) . To the extent a proposed required by this Indenture for the release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire principal properties that the Trustee or the Collateral Trustee acknowledge such release of constitute Collateral, the Issuers and such Guarantor, as applicable, Issuer will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Collateral Documents and this Indenture:
(1) , an Officer’s Certificate requesting such release or acknowledgement;
(2) an Officer’s Certificate and Certificate, an Opinion of Counsel, in compliance with Sections 13.04 Counsel and 13.05 hereof to any other documentation reasonably required by the effect that all conditions precedent provided for in this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted Trustee as required by this Indenture. In addition, in connection with the incurrence of any Pari Passu Lien Obligations, the other Note 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 Security Trustee, for the benefit of the Holders, also enters into the Replacement Collateral Documents (including, without limitation, which provide for Liens on the Collateral Trust which are equal, or substantially equal, to the Liens provided for the benefit of any Pari Passu Lien Obligations; and Intercreditor Agreement); and
(3) provided further that a form of such release or acknowledgement (which release or acknowledgement shall board resolution be in form reasonably satisfactory 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 Collateral 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 shall provide that the requested Trustee, upon request of the Company, to so release is without recourse or warranty 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 Trustee relevant jurisdictions and Collateral Trustee).
(c) may limit the recovery in an enforcement proceeding. Upon compliance by the Issuers Issuer or the Note Guarantors, as the case may be, with the conditions precedent set forth above, as applicable, the Trustee or the Collateral Security Trustee shall promptly, upon the request and at the expense of the Issuers or such Guarantors, as soon as reasonably practicable cause to be released and reconveyed to the IssuersIssuer, or the its Note Guarantors, as the case may be, the released Collateral.
Appears in 1 contract
Samples: Indenture (Virgin Media Inc.)
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right Subject to Section 6.1 of the Holders to Intercreditor Agreement, the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral Trustee, but the failure to deliver such notice shall not affect such release) terminate and be dischargedSecurities:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest and premium, as to all or any portion of property subject to such Liens which has been taken by eminent domainif any, condemnation or other similar circumstances or which has become (and only to on the extent it continues to constitute) Excluded AssetsSecurities;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in Article 12; or
(bSection 10.1(a) a Legal Defeasance or Covenant Defeasance as set forth in Article 8hereof;
(3) in whole, upon a legal defeasance as set forth in Article VIII hereof;
(4) 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 (a) is sold, transferred sold or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) of their Subsidiaries in a transaction not prohibited permitted by this Indenture or the Security Documents at Documents, to the time extent of such salethe interest sold or disposed of, transfer or (B) that is of the nature described in the proviso in the definition of “Asset Sale” and is subject to a disposition or as therein provided, (bC) that is owned or at any time acquired by a Guarantor Subsidiary of the Issuers that has been released from its Subsidiary Guarantee obligations under the Guaranty in accordance with this Indenture, concurrently with the release thereof, (D) that is 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 Securities Act, due to the fact that such shares of such Subsidiary Guarantee (including in connection Subsidiary’s Capital Stock secures the Securities, to file separate financial statements with the designation of a Guarantor SEC (or any other governmental agency), or (E) otherwise in accordance with, and as an Unrestricted Subsidiary expressly provided for under, this Indenture, including, without limitation, Article X, or upon such Guarantor becoming an Excluded Subsidiary);the Security Documents; or
(45) in whole or in part, as applicable, with the consent of Holders of 66-2/3% 66⅔% or more in aggregate of the outstanding principal amount of Notes the Securities, unless such release involves all or substantially all of the Collateral, in which case such release will require the consent of each Holder affected thereby (including including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, NotesSecurities);
(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 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid.
(b) To the extent a proposed release of Collateral is not automatic and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateralapplicable, the Issuers and such Guarantor, as applicable, each Guarantor will furnish to the Trustee and the Collateral Trustee, prior to each proposed release of such Collateral or acknowledgement of such release pursuant to the Security Documents and this Indenture:
(1) an Officer’s Officers’ Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Officers’ Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof Counsel to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement); andwith;
(3) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).;
(c4) all documents required by TIA §314(d), this Indenture and the Security Documents; and
(5) an Opinion of Counsel to the effect that such accompanying documents constitute all documents required by TIA §314(d), this Indenture and the Security Documents. Upon compliance by the Issuers or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuers or such Guarantor to the Trustee of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request be authorized to release and at the expense of the Issuers or such Guarantors, cause to be released and reconveyed reconvey to the Issuers, or the Guarantors, as the case may be, the released Collateral, unless otherwise specified in the Security Documents.
(c) For purposes of the TIA, to the extent required, the release of any Collateral from the terms of the Security Documents will not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture, the Intercreditor Agreement, the Second Lien Intercreditor Agreement or the Security Documents if and to the extent the Collateral is released pursuant to this Indenture or the Security Documents or upon the termination of this Indenture.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Collateral Trustee’s Liens upon the Collateral will no longer secure the Notes or other Obligations outstanding under this Indenture (but not necessarily any Pari Passu Notes Lien Indebtedness or Pari Passu Lien Hedge Agreements), and the right of the Holders to the benefits and proceeds of the Collateral Trustee’s Liens on the Collateral will automatically and without the need for any further action by any Person (other than notice of such release be released with respect to the Collateral TrusteeNotes, but the failure to deliver such notice shall not affect such release) terminate Intermediate Holdings Guarantee and be dischargedthe Note Guarantees, as applicable:
(1) in whole or whole, upon payment in partfull of the principal of, as applicableaccrued and unpaid interest, as to all or any portion of property subject to such Liens which has been taken by eminent domainincluding premium, condemnation or other similar circumstances or which has become (and only to if any, on the extent it continues to constitute) Excluded AssetsNotes;
(2) in whole upon:
(a) whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 12; or
(b) a Legal Defeasance or Covenant Defeasance as set forth in Article 813;
(3) in partwhole, upon a legal defeasance or covenant defeasance as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by either of the Issuers or any Guarantor (other than to the Company or another Restricted Subsidiary) in a transaction not prohibited by this Indenture or the Security Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a 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 Guarantor as an Unrestricted Subsidiary or upon such Guarantor becoming an Excluded Subsidiary)set forth under Article 8;
(4) in whole or in part, as applicableto any asset constituting Collateral (A) if all other Liens on that 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 in accordance with, and as expressly provided for under, the Collateral Documents, the Intercreditor Agreements and this Indenture;
(5) with the consent of Holders of 66sixty-six and two-thirds percent (66 2/3% or more %) in aggregate principal amount of Notes (including the Notes, 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) with respect to the extent that any lease is Collateral, assets of Intermediate Holdings or a Note Guarantor upon termination release of Intermediate Holdings from its Intermediate Holdings Guarantee or such lease;Note Guarantor from its Note Guarantee in accordance with Article 10; and
(7) with respect to enable the disposition of property or other assets that constitute Collateral that is Capital Stock, upon to the dissolution or liquidation of the issuer of such Capital Stock that is extent not prohibited by this Indenture; or
(8) as described in Section 9.02 hereof; provided that, in the case of any release in whole pursuant to clauses (1), (2) and (4) above, all amounts owing to the Trustee and the Collateral Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Collateral Trust and Intercreditor Agreement and the other Security Documents have been paid4.10.
(b) To the extent a proposed release of Collateral is not automatic The Issuer and requires any action by the Trustee or the Collateral Trustee or if the Issuers or any each Note Guarantor desire that the Trustee or the Collateral Trustee acknowledge such release of Collateral, the Issuers and such Guarantor, as applicable, will furnish to the Trustee and the Collateral TrusteeAgent, prior to each proposed release of such Collateral pursuant to Section 14.07(a)(1) through (7) or acknowledgement of such release pursuant to the Security Documents and this IndentureCollateral Documents:
(1) an Officer’s Certificate requesting such release or acknowledgementrelease;
(2) an Officer’s Certificate and an Opinion of Counsel, in compliance with Sections 13.04 and 13.05 hereof to the effect that all conditions precedent provided for in this Indenture, the other Note Documents Indenture and the Security Collateral Documents (including, without limitation, the Collateral Trust and Intercreditor Agreement) to such release of Collateral have been complied with;
(3) solely in the case of a release described in Section 14.07(a)(1) through (5), an Opinion of Counsel in accordance with and that such release of Collateral is permitted by this Indenture, the other Note Documents and the Security Documents (including, without limitation, the Collateral Trust and Intercreditor AgreementSection 15.02(ii); and
(34) a form of such release or acknowledgement (which release or acknowledgement shall be in form reasonably satisfactory to the Trustee and Collateral Trustee and shall provide that the requested release is without recourse or warranty to the Trustee and Collateral Trustee).
(c) Upon compliance by the Issuers Issuer, Intermediate Holdings or the Note Guarantors, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Issuer or Intermediate Holdings or such Note Guarantor to the Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Collateral Trustee Agent shall promptly, upon the request and at the expense of the Issuers or such Guarantors, promptly cause to be released and reconveyed to the IssuersIssuer, Intermediate Holdings or the Guarantorsrelevant Note Guarantor, as the case may be, the released Collateral, and take all other actions reasonably requested by the Issuer in connection therewith.
(d) 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 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 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 be deemed to relate to such after-acquired property or asset to the same extent and with the same force and effect. If, after the Collateral is released 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 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 other representative under such new First Priority Lien Obligations substantially the same rights and powers as afforded under the Intercreditor Agreements entered into on the Issue Date.
Appears in 1 contract
Samples: Indenture (Realogy Corp)
