Release of Liens on the Collateral. (a) The Liens on the Collateral will be released with respect to the Notes: (1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes; (2) in whole, upon satisfaction and discharge of this Indenture as set forth in Article 11; (3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8 ; (4) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries in a transaction 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or by the Collateral Documents, to the extent of the interest sold or disposed of, (B) that is cash or Net Proceeds withdrawn from a Collateral Account for any one or more purposes permitted by Section 4.10 or by Section 2.15 (C) that is of the nature described in clause (1), clause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, (E) that is owned or at any time acquired by a 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 Capital Stock in accordance with the terms of this Indenture; or (G) otherwise in accordance with, and as expressly provided for under, this Indenture; (5) with the consent of the Holders of at least 75% of the aggregate principal amount of the Notes affected thereby (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes); (6) 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 connection with the 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 upon which the Lien securing the Notes has been released pursuant to this clause (6) then the Lien securing the Notes on such Second Priority Collateral will also be deemed reinstated on a second priority basis; provided, that, in the case of any release in whole pursuant to clauses (1), (2), (3), (5) and (6) above, all amounts owing to the Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement have been paid. (b) To the extent required, the Company shall furnish to the Trustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture: (1) an Officer’s Certificate and Opinion of Counsel and such other documentation as required by this Indenture; and (2) all documents required by §314(d) of the Trust Indenture Act, the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the 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 Agent shall promptly cause to be released and reconveyed to the Company, or 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 Liens on the Collateral will shall automatically and without the need for any further action by any Person be released with respect released:
(i) in whole or in part, as applicable, as to the Notesall or any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances;
(ii) in whole upon:
(1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Article 11Section 8.1(a);
(2) a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.1(b); or
(3) in wholethe occurrence of a Suspension Period (but only until the Reinstatement Date, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8 if any);
(4iii) in part, as to any property constituting Collateral that (Ax) that is sold sold, transferred or otherwise disposed of by the Company or any of its Restricted Subsidiaries Subsidiary Guarantor (other than to the Company or another Subsidiary Guarantor) in a transaction permitted not prohibited by Section 4.10 this Indenture at the time of such sale, transfer or by the Collateral Documents, to the extent of the interest sold disposition or disposed of, (By) 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, (E) that is owned or at any time acquired by a Subsidiary of the Company Guarantor that has been released from its Subsidiary Guarantee in accordance with this Indenture, concurrently with the release thereof, of such Subsidiary Guarantee (Fincluding in connection with the designation of a Subsidiary Guarantor as an Unrestricted Subsidiary);
(iv) pursuant to an amendment in accordance with Article IX;
(v) in whole as to all Collateral that is Capital Stockowned by a Subsidiary Guarantor that is released from its Subsidiary Guarantee in accordance with Section 10.2;
(vi) in part, upon the dissolution of the issuer of such Capital Stock in accordance with the terms applicable provisions of this Indenturethe Collateral Documents and the Intercreditor Agreement; or (G) otherwise in accordance with, and as expressly provided for under, this Indenture;and
(5vii) in whole or in part, with the consent of the Holders of at least 75662⁄3% of the in aggregate principal amount of the Notes affected thereby (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, or purchase of, Notes);
(6) 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 connection with the 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 upon which the Lien securing the Notes has been released pursuant to this clause (6) then outstanding. For the Lien securing the Notes on such Second Priority Collateral will also be deemed reinstated on a second priority basis; provided, that, in the case avoidance of any release in whole pursuant to clauses (1), (2), (3), (5) and (6) above, all amounts owing to the Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement have been paid.
(b) To the extent required, the Company shall furnish to the Trustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(1) an Officer’s Certificate and Opinion of Counsel and such other documentation as required by this Indenture; and
(2) all documents required by §314(d) of the Trust Indenture Act, the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the 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 Agent shall promptly cause to be released and reconveyed to the Company, or its Guarantors, as the case may be, the released Collateral.
(c) Notwithstanding anything to the contrary hereindoubt, the Company and its Subsidiaries shall the Subsidiary Guarantors will not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they determine, TIA.
(b) In connection with any termination or release of any Liens 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 pursuant to the Lien of this Indenture or any of the Collateral Documents; (iii) surrendering , the Trustee shall, or modifying any franchiseshall cause the Collateral Agent to, license promptly, at the sole expense of the Company, execute, deliver or permit subject acknowledge all documents, instruments and releases that have been requested, in writing, to release, reconvey to the Lien 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 written directions of this Indenture or the Company and/or the Subsidiary Guarantor, as the case may be.
(c) The release of any Collateral from the terms of the Collateral Documents which it may own 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 under which it may be operating; altering, repairing, replacing, changing upon termination of this Indenture. The Trustee and each of the location Holders each acknowledge and direct the Trustee and the Collateral Agent that a release of Collateral or position of and adding to its structures, machinery, systems, equipment, fixtures and appurtenances; (iv) granting a license Lien in accordance with the terms of any intellectual property; 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.
(vd) sellingAs and when requested by the Company or any Subsidiary Guarantor, transferring the Trustee shall instruct the Collateral Agent to authorize the filing of Uniform Commercial Code financing statement amendments or otherwise disposing 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 inventory 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 ordinary course immediately preceding sentence has been released from the Liens 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 each of the Collateral in the ordinary course Documents. The Collateral Agent shall execute and deliver such documents, instruments and statements and shall take all such actions promptly upon receipt 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 such written instructions from the Company’s business. The Company shall deliver to , any Subsidiary Guarantor or 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 IndentureTrustee.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Liens on the Collateral will be released with respect to any series of Notes and the Notesrelated Guarantees, as applicable:
(1) in whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on on, such series of Notes and all other related Obligations under this Indenture, the NotesGuarantees 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;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 11VIII;
(3) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance with respect to such series as set forth in under Article 8 VIII;
(4) in whole or in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries in a transaction permitted by Section 4.10 or by the Collateral DocumentsCollateral, 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, (E) that is owned or at any time acquired by a 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 Capital Stock in accordance with the terms of this Indenture; or (G) otherwise in accordance with, and as expressly provided for under, the Security Documents, the Intercreditor Agreements and this Indenture;
(5) with the consent of the Holders of at least 75662/3% of the in aggregate principal amount of the Notes affected thereby (such series of Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes)such series of Notes as provided under Section 9.2;
(6) on in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the Senior Credit Agreements and any other Parity Lien Indebtedness other than by reason of payment under or the termination or repayment of the Second Priority Collateral, upon any release thereof by the agent under the Term Loan Credit Agreement (or such other Parity Lien Indebtedness, the requisite lenders thereunder) release of the property and assets of such Guarantor or a discharge or release by or as otherwise authorized or directed by such agent or lenders (other than a result of payment in connection with the expiration enforcement of remedies under such guarantee or termination direct obligation, but only if the Liens on the Collateral 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 upon which the Lien securing the Notes has been such Guarantor are also substantially concurrently released pursuant to this clause (6) then the Lien securing the Notes on such Second Priority Collateral will also be deemed reinstated on a second priority basis; provided, that, in the case of any release in whole pursuant to clauses (1), (2), (3), (5) and (6) above, all amounts owing to the Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement have been paid.
(b) To the extent required, the Company shall furnish to the Trustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(1) an Officer’s Certificate and Opinion of Counsel and such other documentation as required by this Indentureterms hereof; and
(27) all documents required by §314(d) of the Trust Indenture Act, the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the Company or the Guarantorsin part, as to any property or assets constituting Collateral, to enable the case may be, with disposition of such property or other assets (to a Person that is not the conditions precedent set forth above, and upon delivery by the Company Issuer or such Guarantor a 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 Agent shall promptly cause to be released and reconveyed to the Company, or 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 extent not prohibited by this IndentureSection 3.7.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Liens on the Collateral will be released with respect to the NotesNotes and the Note Guarantees, as applicable:
(1) in whole, upon payment in full of the principal of, accrued and unpaid interest and interest, including premium, if any, on the such Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 1112;
(3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in accordance with Article 8 8;
(4) in whole or in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries in a transaction 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, (E) that is owned or at any time acquired by a 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 Capital Stock in accordance with the terms of this Indenture; or (G) otherwise in accordance with, and as expressly provided for under, the provisions of the Collateral Documents, the Pari Passu Intercreditor Agreement (if any) and this Indenture;
(5) with the consent of the Holders of at least 7566 2/3% of the in aggregate principal amount of the Notes affected thereby (Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);
(6) on any with respect to assets of the Second Priority Collaterala Guarantor, upon any release thereof of such Guarantor from its Note Guarantee in accordance with Article 11; and
(7) to enable the disposition of property or other assets that constitute Collateral to the extent not prohibited 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 connection with the expiration or termination of the Credit Agreement)Section 4.10; provided, however, that if there is reinstated a Lien securing Credit Agreement obligation on any or all of the Second Priority Collateral upon which the Lien securing the Notes has been released pursuant to this clause (6) then the Lien securing the Notes on such Second Priority Collateral will also be deemed reinstated on a second priority basis; provided, provided that, in the case of any release in whole pursuant to clauses (1), (2), (3), (5) and (64) aboveof this Section 10.07(a), all amounts owing to the Trustee and the Collateral Agent under this Indenture, the Notes, the Subsidiary GuaranteesNote Guarantee, the Registration Rights Agreement, Pari Passu Intercreditor Agreement (if any) and the Collateral Documents and the Intercreditor Agreement have been paid.
(b) To the extent required, the Company shall The Issuers and each Guarantor will furnish to the TrusteeTrustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to Section 10.07(a)(1) through (7) or pursuant to the Collateral Documents and this IndentureDocuments:
(1) an Officer’s Officers’ Certificate requesting such release;
(2) an Officers’ Certificate to the effect that all conditions precedent provided for in this Indenture and the Collateral Documents to such release 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 and such other documentation as required by this Indentureof the Issuers in accordance with Section 13.04(2); and
(24) all documents required by §314(da form of such release (which release shall be in form reasonably satisfactory to the Trustee and shall provide that the requested release is without recourse or warranty to the Trustee).
(c) of the Trust Indenture Act, the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the Company Issuers or the Guarantorsa Guarantor, as the case may be, with the conditions precedent set forth above, and if required by this Indenture upon delivery by the Company Issuers or Holdings 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 and the Collateral Agent shall promptly cause to be released and reconveyed to the CompanyIssuers, Holdings or its Guarantorsthe relevant Guarantor, 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 Liens 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, 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 Company and Collateral securing the Guarantors may, among Notes shall not be released upon repayment or termination of 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 First 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 IndentureIndebtedness.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Liens on the Collateral will shall be released with respect to the NotesSecurities and the Guarantees, as applicable:
(1i) in whole, upon payment in full of the principal of, accrued and unpaid interest, including additional interest and premium, if any, on the NotesSecurities;
(2ii) in whole, upon satisfaction and discharge of this Indenture as set forth in Article 11Section 1201 hereof;
(3iii) in whole, upon a Legal Defeasance or Covenant Defeasance legal defeasance as set forth in Article 8 Section 402;
(4iv) in part, as to any property constituting Collateral (A) that is sold or otherwise disposed of by the Company Issuer or any of its Restricted Subsidiaries the Guarantors in a transaction permitted by Section 4.10 or 1012 and by the Collateral DocumentsSecurity 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 or Net Proceeds withdrawn from a the Collateral Account Accounts for any one purpose not prohibited this Indenture or more purposes permitted by Section 4.10 the Security Documents; 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, (E) that is owned or at any time acquired by a Subsidiary of the Company that has been otherwise 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 Capital Stock in accordance with the terms of this Indenture; or (G) otherwise in accordance with, and as expressly provided for under, this IndentureIndenture and the Security Documents;
(5v) as set forth in Section 902, as to property that constitutes (x) less than all or substantially all of the Collateral, with the consent of Holders of at least a majority in aggregate principal amount of the Outstanding Securities, voting as a single class or (y) in the case of a release of all or substantially all of the Collateral, with the consent of the Holders of at least 75% of the sixty-six and two-thirds percent (662/3%) in aggregate principal amount of the Notes affected thereby (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
(6vi) on any with respect to assets of the Second Priority Collaterala Guarantor, upon any release thereof by the agent of such Guarantor from its Guarantee as set forth under the Credit Agreement (or the requisite lenders thereunder) or as otherwise authorized or directed by such agent or lenders (other than in connection with the 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 upon which the Lien securing the Notes has been released pursuant to this clause (6) then the Lien securing the Notes on such Second Priority Collateral will also be deemed reinstated on a second priority basis; provided, that, in the case of any release in whole pursuant to clauses (1), (2), (3), (5Sections 1013(b) and (6) above, all amounts owing to the Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement have been paid1314.
(b) To For the extent requiredrelease of each proposed release of any Collateral, the Company Issuer and each Guarantor shall furnish to the TrusteeTrustee and the Collateral Agent, prior to each proposed release of such Collateral pursuant to the Collateral Security Documents and this Indenture:
(1) , an Officer’s Officers’ Certificate and an Opinion of Counsel and such other documentation as required by under Section 103, (i) requesting such release and (ii) to the effect that all conditions precedent provided for in this Indenture; andIndenture and the Security Documents to such release have been complied with.
(2c) all documents required by §314(d) of the Trust Indenture Act, the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the Company Issuer or the Guarantorsany Guarantor, as the case may be, with the conditions precedent set forth above, 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 Agent shall promptly cause to be released and reconveyed to the CompanyIssuer, or its Guarantorssuch Guarantor, as the case may be, the released Collateral.
(c) Notwithstanding anything to Collateral in accordance with the contrary herein, the Company and its Subsidiaries shall not be required to comply with all or any portion of Section 314(d) directions of the Trust Indenture Act if they determineIssuer, in good faith based on advice of counselor such Guarantor, that under as 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 Collateralcase may be.
(d) The Company and release of any Collateral from 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 terms of the Collateral Security Documents which has become worn out, defective or obsolete or shall not used or useful in be deemed to impair the business; (ii) abandoning, terminating, canceling, releasing or making alterations in or substitutions of any leases or contracts subject to the Lien of security under this Indenture or any in contravention of the Collateral Documents; (iii) surrendering provisions hereof or modifying any franchise, license affect the security interests or permit subject to the Lien of this Indenture or any of the Collateral Documents which it may own or Liens 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 Security Documents if and to the extent the Collateral Documents; 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 (viiiwhich shall be prepared by the Issuer) abandoning solely to the extent necessary to delete Excluded Assets from the description of assets in any intellectual property 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 is no longer used shall be prepared by the Issuer) and to take such other action as the Issuer may request to evidence or useful confirm that Excluded Assets described in the Company’s businessimmediately preceding sentence has been released from the Liens of each of the Security Documents. The Company Collateral Agent shall execute and deliver to such documents, instruments and statements and shall take all such actions promptly upon receipt of such instructions from the Collateral Agent, within Trustee.
(f) Within 30 calendar days following the end of each six-month period beginning on May 15 and November 15 of any yeareach Interest Payment Date, the Issuer shall deliver an officersOfficers’ certificate Certificate to the Collateral Agent within to the effect that all releases and withdrawals during the preceding six-month period (or since the Issue Dateor, in the case of the first such certificateOfficers’ Certificate, since the Issue Date) pursuant to this described in Section 12.07(d1406(a)(iv) in which no release or consent of the Collateral Agent was obtained in the ordinary course of the Company’s and the Guarantors’ business above, were not prohibited by this Indenture.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Liens on the Collateral will shall automatically and without any need for any further action by any Person be released with respect to the Notesreleased:
(1) in wholewhole or in part, upon payment in full as applicable, as to all or any portion of the principal ofproperty subject to such Liens which has been taken by eminent domain, accrued and unpaid interest and premium, if any, on the Notescondemnation or other similar circumstances;
(2) in whole, upon whole upon:
(i) satisfaction and discharge of this Indenture as set forth in Article 11Section 8.01(a); or
(ii) a legal defeasance or covenant defeasance of this Indenture as set forth in Section 8.01(b) and (c);
(3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8 ;
(4) in part, as to any property constituting Collateral that (Aa) that is sold sold, transferred or otherwise disposed of by the Company Issuer or any of its Restricted Subsidiaries Guarantor (other than to the Issuer or another Guarantor) in a transaction permitted not prohibited by Section 4.10 this Indenture at the time of such sale, transfer or by the Collateral Documents, to the extent of the interest sold disposition or disposed of, (Bb) 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, (E) that is owned or at any time acquired by a Subsidiary of the Company Guarantor 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 Capital Stock Guarantee (including in accordance connection with the terms designation of this Indenture; or (G) otherwise in accordance with, and a Guarantor as expressly provided for under, this Indenturean Unrestricted Subsidiary);
(54) as set forth in Section 9.02(a), as to property that constitutes less than all or substantially all of the Collateral, with the consent of Holders of at least a majority in aggregate principal amount of the Notes 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% of the %) in aggregate principal amount of the Notes affected thereby (includingoutstanding), without limitation, including consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);; and
(6) 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 connection with the 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 upon which the Lien securing the Notes has been released pursuant to this clause (6) then the Lien securing the Notes on such Second Priority Collateral will also be deemed reinstated on a second priority basis; provided, that, in the case of any release in whole pursuant to clauses (1), (2), (3), (5) and (6) abovein part, all amounts owing to in accordance with the Trustee under this Indenture, applicable provisions of the Notes, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Security Documents and the Intercreditor Agreement 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 required, such Collateral is released pursuant to this Indenture or upon termination of this Indenture. The Trustee and each of the Company shall furnish to the Trustee, prior to Holders each proposed acknowledge that a release of Collateral pursuant or a Lien in accordance with the terms of any Collateral Document and this Article 10 shall not be deemed for any purpose to be an impairment of the Lien on the Collateral Documents and in contravention of the terms of this Indenture:
(1) an Officer’s Certificate and Opinion of Counsel and such other documentation as required by this Indenture; and
(2) all documents required by §314(d) of the Trust Indenture Act, the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the 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 Agent shall promptly cause to be released and reconveyed to the Company, or its Guarantors, as the case may be, the released Collateral.
(c) Notwithstanding anything any provision to the contrary herein, as and when requested by the Company Issuer or any 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 its Subsidiaries shall be attached to such request as an exhibit) solely to the extent necessary to delete or release Liens on property or assets not be required to comply with all 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 portion Guarantor, the Trustee shall instruct the Collateral Agent to execute such documents, instruments or statements reasonably requested of Section 314(dit (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 Trust Indenture Act if they determineSecurity Documents. The Collateral Agent shall execute and deliver such documents, in good faith based on advice instruments and statements promptly upon receipt of counselsuch instructions from the Issuer, that under any Guarantor or 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 CollateralTrustee.
(d) The Company and In no event shall the Guarantors may, among other things, without Trustee or Collateral Agent be obligated to execute or deliver any document evidencing any release or consent by reconveyance without receipt of an Opinion of Counsel and Officer’s Certificate, each stating that such release complies with this Indenture, the TrusteeIntercreditor Agreement and the Security Documents, 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 and conforming to the Lien requirements of Section 12.02 and Section 12.03 hereof. To the Collateral Documents which has become worn outextent applicable, defective or obsolete or not used or useful in the business; (ii) abandoningIssuer shall cause TIA § 313(b), terminatingrelating to reports, cancelingand TIA § 314(d), releasing or making alterations in or substitutions of any leases or contracts subject relating to the Lien release of property or securities from the lien and security interest of this Indenture or any of the Collateral Documents; (iii) surrendering or modifying any franchise, license or permit subject and relating to the Lien substitution therefor of any property or securities to be subjected to the lien and security interest of this Indenture or any of the Collateral Documents which it may own or under which it may Indenture, to 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 Indenturecomplied with.
Appears in 1 contract
Samples: Indenture (Symbion Inc/Tn)
Release of Liens on the Collateral. (a) The Liens on the Collateral will be released with respect to the NotesNotes and the related Guarantees, as applicable:
(1) in whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on on, the NotesNotes and all other related 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;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 11VIII;
(3) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in under Article 8 VIII;
(4) in whole or in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries in a transaction permitted by Section 4.10 or by the Collateral DocumentsCollateral, 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, (E) that is owned or at any time acquired by a 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 Capital Stock in accordance with the terms of this Indenture; or (G) otherwise in accordance with, and as expressly provided for under, the Security Documents, the Intercreditor Agreements and this Indenture;
(5) with the consent of the Holders of at least 75662/3% of the in aggregate principal amount of the Notes affected thereby (such series of Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes)such series of Notes as provided under Section 9.2;
(6) on in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the Senior Credit Agreements and any other Parity Lien Indebtedness other than by reason of payment under or the termination or repayment of the Second Priority Collateral, upon any release thereof by the agent under the Term Loan Credit Agreement (or such other Parity Lien Indebtedness, the requisite lenders thereunder) release of the property and assets of such Guarantor or a discharge or release by or as otherwise authorized or directed by such agent or lenders (other than a result of payment in connection with the expiration enforcement of remedies under such guarantee or termination direct obligation, but only if the Liens on the Collateral 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 upon which the Lien securing the Notes has been such Guarantor are also substantially concurrently released pursuant to this clause the terms thereof; and
(67) then in part, as to any property or assets constituting Collateral, to enable the Lien securing disposition of such property or other assets (to a Person that is not the Notes on such Second Priority Collateral will also be deemed reinstated on Issuer or a second priority basis; provided, that, in the case of any release in whole pursuant to clauses (1), (2), (3), (5Guarantor) and (6) above, all amounts owing to the Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement have been paidextent not prohibited by Section 3.7.
(b) To The Issuer or the extent required, the Company shall applicable Guarantor will furnish to the TrusteeTrustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to Sections 11.8(a)(1) through (6) or pursuant to the Collateral Documents and this IndentureSecurity Documents:
(1) an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture and the Security Documents to such release 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 and such other documentation as required by this Indenturein accordance with Section 12.2(ii); and
(23) all documents required by §314(d) a form of such release (which release shall provide that the Trust Indenture Act, requested release is without recourse or warranty to the Trustee or the Collateral Documents, the Intercreditor Agreement and this Indenture. Agent).
(c) Upon compliance by the Company 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 Company Issuer or such Guarantor to the Trustee 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 or shall direct the Collateral Agent shall to promptly cause to be released and reconveyed to the Company, Issuer or its Guarantorsthe relevant Guarantor, 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 take 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 actions reasonably requested by the TrusteeIssuer or such Guarantor in connection therewith, 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 at 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 CompanyIssuer’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 Indentureexpense.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Liens on the Collateral will be released with respect to the NotesNotes and the Guarantees, as applicable:
(1) in whole, upon payment in full of the principal of, accrued and unpaid interest and interest, including premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in accordance with Article 11VIII;
(3) in whole, upon a Legal Defeasance legal defeasance or Covenant Defeasance covenant defeasance as set forth in under Article 8 VIII;
(4) in whole or in part, as to any property asset constituting Collateral (A) that is sold or otherwise disposed of by the Company or any of its Restricted Subsidiaries in a transaction permitted by Section 4.10 or by the Collateral DocumentsCollateral, 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, (E) that is owned or at any time acquired by a 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 Capital Stock in accordance with the terms of this Indenture; or (G) otherwise in accordance with, and as expressly provided for under, the Security Documents and this Indenture;
(5) with the consent of the Holders of at least 7566.7% of the in aggregate principal amount of the Notes affected thereby (Notes, including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes)Notes as provided under Section 9.2;
(6) on with respect to assets of a Subsidiary Guarantor, upon release of such Subsidiary Guarantor from its Guarantee with respect to the Term B Credit Agreement and any other Parity Lien Debt other than by reason of payment under or the termination or repayment of the Second Priority Collateral, upon any release thereof by the agent under the Term B Credit Agreement or such other Parity Lien Debt; and
(7) in part, to enable the disposition of property or the requisite lenders thereunder) or as otherwise authorized or directed by such agent or lenders (other than in connection with the expiration or termination of the Credit Agreement); provided, however, assets that if there is reinstated a Lien securing Credit Agreement obligation on any or all of the Second Priority constitute Collateral upon which the Lien securing the Notes has been released pursuant to this clause (6) then the Lien securing the Notes on such Second Priority Collateral will also be deemed reinstated on a second priority basis; provided, that, in the case of any release in whole pursuant to clauses (1), (2), (3), (5) and (6) above, all amounts owing to the Trustee under this Indenture, the Notes, the Subsidiary Guarantees, the Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement have been paidextent not prohibited by Section 3.7.
(b) To the extent required, the Company shall The Issuer and each Guarantor will furnish to the TrusteeTrustee and the Secured Notes Collateral Agent, prior to each proposed release of Collateral pursuant to Section 11.8(a)(1) through (6) or pursuant to the Collateral Documents and this IndentureSecurity Documents:
(1) an Officer’s Certificate requesting such release;
(2) an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture and the Security Documents to such release 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 and such other documentation as required by this Indenturein accordance with Section 12.2(ii); and
(24) all documents required by §314(da form of such release (which release shall provide that the requested release is without recourse or warranty to the Trustee or the Notes Secured Collateral Agent).
(c) of the Trust Indenture Act, the Collateral Documents, the Intercreditor Agreement and this Indenture. Upon compliance by the Company 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 Company 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 shall direct the Secured Notes Collateral Agent shall to promptly cause to be released and reconveyed to the Company, Issuer or its Guarantorsthe relevant Guarantor, as the case may be, the released Collateral.
(c) Notwithstanding anything to , and take all other actions reasonably requested by the contrary hereinIssuer in connection therewith, at 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 CollateralIssuer’s expense.
(d) The Company Notwithstanding the foregoing, if the Liens securing the Priority Lien Debt and Parity Lien Debt (other than the Guarantors mayNotes) 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, among other thingsthe Liens on the Collateral securing the Notes will not be released, without except to the extent the Collateral or any release or consent portion thereof was disposed of in order to repay the Priority Lien Debt and such Parity Lien Debt secured by the TrusteeCollateral, conduct ordinary course activities 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 Collateral, including, without limitation, (i) selling or otherwise disposing of, in any transaction or series of related transactions, any property the Collateral subject to the Lien 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 Documents 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 has become worn out, defective or obsolete or not used or useful are expected to be in substantially the business; (ii) abandoning, terminating, canceling, releasing or making alterations in or substitutions of any leases or contracts subject 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 this Indenture or any of the Collateral Documents; (iii) surrendering or modifying any franchisecounsel and surveys as required under Section 11.6, license or permit subject to the Lien of this Indenture or any of the Collateral Documents which it may own or as are required 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 Security Documents to vest in the Company’s business. The Company shall deliver 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 Agent, within 30 calendar days following and thereupon all provisions of the end of each six-month period beginning on May 15 and November 15 of any year, an officers’ certificate Indenture relating to the effect that all releases Collateral shall be deemed to relate to such after-acquired property or asset to the same extent and withdrawals during with 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 same force and the Guarantors’ business were not prohibited by this Indentureeffect.
Appears in 1 contract
Release of Liens on the Collateral. (a) The Liens on the Collateral will be released with respect to the NotesNotes and the Note Guarantees, as applicable:
(1) in whole, upon payment in full of the principal of, accrued and unpaid interest and premium, if any, on the Notes;
(2) in whole, upon satisfaction and discharge of this Indenture as set forth in Article 11Section 12.01 hereof;
(3) in whole, upon a Legal Defeasance or Covenant Defeasance as set forth in Article 8 hereof;
(4) in part, as to any property constituting Collateral Collateral:
(A) that is sold or otherwise disposed of by the Company Issuer or any of its Restricted Subsidiaries the Guarantors in a transaction permitted by Section 4.10 or Section 4.18 and by the Collateral Documents, 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 Proceeds withdrawn from a Collateral Account Available Cash used for any one or more purposes permitted by Section 4.10 or by Section 2.15 4.10(1); or
(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, (E) that is owned or at any time acquired by a 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 Capital Stock in accordance with the terms of this Indenture; or (G) otherwise in accordance with, and or as expressly provided for under, this Indenture, the Intercreditor Agreement, or the Collateral Documents;
(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;
(6) in whole or in part, with the consent of the Holders of at least 75% of the sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Notes affected thereby (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Notes);; and
(67) on upon the taking of Collateral by eminent domain, condemnation or in similar circumstances; provided that 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 compensation received with respect to such agent or lenders (other than taking is applied in connection accordance with the expiration or termination of the Credit AgreementSection 4.10(1); provided, however, that if there is reinstated a Lien securing Credit Agreement obligation on any or all of the Second Priority Collateral upon which the Lien securing the Notes has been released pursuant to this clause (6) then the Lien securing the Notes on such Second Priority Collateral will also be deemed reinstated on a second priority basis; . provided, that, in the case of any release in whole pursuant to clauses (1), (2), ) through (3), (5) and (6) above, all amounts owing to the Trustee under this Indenture, the Notes, the Subsidiary Note Guarantees, the Registration Rights AgreementCollateral Documents, the Collateral Documents and the Intercreditor Agreement have been paidpaid or otherwise provided for to the reasonable satisfaction of the Trustee.
(b) To With respect to the extent requiredrelease of Premises, the Company shall Issuer or the Guarantors, as the case may be, will furnish to the Trustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and this Indenture:
(1) an Officer’s Officers’ Certificate and Opinion of Counsel and requesting such other documentation as required by this Indenture; andrelease;
(2) an Officers’ Certificate to the effect that all documents required by §314(d) of the Trust conditions precedent provided for in this Indenture Act, and the Collateral DocumentsDocuments to such release have been complied with;
(3) a form of such release (which release shall be in form reasonably satisfactory to the Trustee and shall provide that the requested release is without recourse or warranty to the Trustee). provided, that no Officers’ Certificate pursuant to clauses (1) and (2) above shall be required for the Intercreditor Agreement and 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 Company Issuer 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 Agent shall promptly cause to be released and reconveyed to the CompanyIssuer, or its 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 hereinin this Section 10.06(c), the Company and its Subsidiaries Issuer shall not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they determineit determines, in good faith based on advice of counsel (which may be internal counsel), that under the terms of that section Section 314(d) and/or any interpretation or guidance as to the meaning thereof of the Commission SEC and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) of the Trust Indenture Act is inapplicable to the one or a series of 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: Senior Secured Notes Indenture (Lri Holdings, Inc.)
